Exhibit
10.1


 


	
   

  	
  Execution Copy

  



 


 


TRUST AGREEMENT


 


dated as of June 30, 2004


 


between


 


CRIIMI MAE CLASS D
DEPOSITOR LLC


(Depositor)


 


and


 


LASALLE BANK
NATIONAL  ASSOCIATION


(Trustee)


 


 












 


CRIIMI MAE Class D Trust














 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I  DEFINITIONS AND INTERPRETATION  

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  1.01  Definitions

  	
   

  
	
   

  	
  SECTION

  	
  1.02  Interpretation.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II  THE TRUST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION

  	
  2.01  Declaration of Trust.

  	
   

  
	
   

  	
  SECTION

  	
  2.02  Name.

  	
   

  
	
   

  	
  SECTION

  	
  2.03  Purposes, Authority and Powers.

  	
   

  
	
   

  	
  SECTION

  	
  2.04  Term and Termination; Unclaimed Moneys.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III  THE UNDERLYING ASSETS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION

  	
  3.01  Transfer of Underlying Assets.

  	
   

  
	
   

  	
  SECTION

  	
  3.02  No Liability of the Depositor or the
  Trustee on Underlying Assets.

  	
   

  
	
   

  	
  SECTION

  	
  3.03  Notice of Underlying Default.

  	
   

  
	
   

  	
  SECTION

  	
  3.04  Enforcement of Rights, Votes, Consent and
  Waivers with Respect to Underlying Assets.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV  THE CERTIFICATES  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION

  	
  4.01  Authorization of Certificates.

  	
   

  
	
   

  	
  SECTION

  	
  4.02  Issuance of the Certificates; Initial
  Principal Balances; Certificates Represent Beneficial Interest in Underlying
  Assets.

  	
   

  
	
   

  	
  SECTION

  	
  4.03  Form, Denomination and Delivery of
  Certificates.

  	
   

  
	
   

  	
  SECTION

  	
  4.04  Certificates Identical.

  	
   

  
	
   

  	
  SECTION

  	
  4.05  Certificateholder as Owner.

  	
   

  
	
   

  	
  SECTION

  	
  4.06  Certificateholders Bound by Agreement.

  	
   

  
	
   

  	
  SECTION

  	
  4.07  Registrar and Register.

  	
   

  
	
   

  	
  SECTION

  	
  4.08  Restrictions and Procedures Relating to
  Certificate Transfers.

  	
   

  
	
   

  	
  SECTION

  	
  4.09  Lost Certificates, Etc.

  	
   

  
	
   

  	
  SECTION

  	
  4.10  Conditions to Deliveries, Transfers and
  Exchanges.

  	
   

  
	
   

  	
  SECTION

  	
  4.11  List of Certificateholders.

  	
   

  
	
   

  	
  SECTION

  	
  4.12  Standard of Conduct.

  	
   

  
	
   

  	
  SECTION

  	
  4.13  Provision of Copies of this Agreement to
  Certificateholders.

  	
   

  
	
   

  	
  SECTION

  	
  4.14  Optional Repurchase By Depositor.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V  DISTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  5.01  Distributions.

  	
   

  
	
   

  	
  SECTION

  	
  5.02  Method of Payment.

  	
   

  
	
   

  	
  SECTION

  	
  5.03  Withholdings and other Taxes and
  Governmental Charges.

  	
   

  
	
   

  	
  SECTION

  	
  5.04  Subordination.

  	
   

  
									



 


i

















 


	
  ARTICLE VI  DOCUMENT DISTRIBUTION AND REPORTING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION

  	
  6.01  Document Distributions.

  	
   

  
	
   

  	
  SECTION

  	
  6.02  Rule 144A Reporting.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII  CERTAIN TAX MATTERS

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  7.01  Intended Tax Treatment.

  	
   

  
	
   

  	
  SECTION

  	
  7.02  Grantor Trust Administration.

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII  ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SECTION

  	
  8.01  Custodial Account.

  	
   

  
	
   

  	
  SECTION

  	
  8.02  Collection Account.

  	
   

  
	
   

  	
  SECTION

  	
  8.03  Accounts and Assets To Be Held in Trust,
  Etc.

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX  THE TRUSTEE

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  9.01  Use of Agents; Appointment of Additional
  Trustees.

  	
   

  
	
   

  	
  SECTION

  	
  9.02  Limited Authority of the Trustee.

  	
   

  
	
   

  	
  SECTION

  	
  9.03  Waiver of Claims.

  	
   

  
	
   

  	
  SECTION

  	
  9.04  Prevention or Delay in Performance by the
  Trustee.

  	
   

  
	
   

  	
  SECTION

  	
  9.05  Ownership of and Transactions in
  Underlying Assets and Certificates.

  	
   

  
	
   

  	
  SECTION

  	
  9.06  Exculpation of the Trustee and Related
  Matters.

  	
   

  
	
   

  	
  SECTION

  	
  9.07  Fidelity Bond.

  	
   

  
	
   

  	
  SECTION

  	
  9.08  Resignation and Removal of the Trustee;
  Appointment of Successor Trustee.

  	
   

  
	
   

  	
  SECTION

  	
  9.09  Fees and Expenses of the Trustee.

  	
   

  
	
   

  	
  SECTION

  	
  9.10  Indemnification of the Trustee.

  	
   

  
	
   

  	
  SECTION

  	
  9.11  Limitation of Liability.

  	
   

  
	
   

  	
   

  
	
  ARTICLE X  THE DEPOSITOR

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  10.01  Prevention or Delay in Performance by the
  Depositor.

  	
   

  
	
   

  	
  SECTION

  	
  10.02  Ownership of and Transactions in
  Underlying Assets and Certificates.

  	
   

  
	
   

  	
  SECTION

  	
  10.03  Exculpation of the Depositor.

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
   

  	
  SECTION

  	
  11.01  Amendment.

  	
   

  
	
   

  	
  SECTION

  	
  11.02  Counterparts.

  	
   

  
	
   

  	
  SECTION

  	
  11.03  Exclusive Benefit of Parties.

  	
   

  
	
   

  	
  SECTION

  	
  11.04  Invalidity of Provisions.

  	
   

  
	
   

  	
  SECTION

  	
  11.05  Notices and Other Communications.

  	
   

  
	
   

  	
  SECTION

  	
  11.06  GOVERNING LAW.

  	
   

  
	
   

  	
  SECTION

  	
  11.07  Headings.

  	
   

  
	
   

  	
  SECTION

  	
  11.08  No Petition Covenant.

  	
   

  
								



 


ii

















 


	
  Appendix
  A

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
  Exhibit
  A

  	
  Form
  of Certificate

  	
   

  
	
  Exhibit
  B

  	
  Form
  of Transferring Certificateholder’s Certificate

  	
   

  
	
  Exhibit
  C

  	
  Form
  of Transferee’s Certificate

  	
   

  
	
  Exhibit
  D

  	
  Form
  of Initial Certificateholder’s Representation Letter

  	
   

  
	
  Exhibit E

  	
  Form of
  Certification of CRIIMI MAE Inc.

  	
   

  



 


iii

















 


TRUST AGREEMENT (this “Agreement”) dated as of June,
30, 2004 between CRIIMI MAE CLASS D DEPOSITOR LLC, a Delaware limited liability
company, and LaSalle Bank National Association, a national banking association,
as Trustee.


 


For good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:


 


ARTICLE I

DEFINITIONS AND INTERPRETATION


 


SECTION   1.01  Definitions.  Capitalized
terms used herein shall have the meanings ascribed to them in Appendix A
Attached hereto.


 


SECTION   1.02  Interpretation.


 


Except as
otherwise specified herein or as the context may otherwise require, as used
herein:  (i) the definitions of
terms are equally applicable both to the singular and plural forms of such
terms and to the masculine, feminine and neuter genders of such terms; (ii) the
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section
or other subdivision; (iii) the word “including” and correlative phrases shall
be deemed to be followed by the phrase “without limitation” unless actually
followed by such phrase or a phrase of like import; (iv) a reference to an
agreement or other document is to such agreement or other document as amended
or otherwise modified from time to time; and (v) a reference to a statute,
regulation or other governmental rule is a reference to it as amended or
replaced from time to time (and references to provisions thereof are references
to corresponding provisions of any such replacement).


 


ARTICLE II

THE TRUST


 


SECTION   2.01  Declaration of Trust.


 


The Trust is
hereby formed as a New York common law trust. 
The Trustee is hereby appointed to hold and agrees to hold the
Underlying Assets upon the trusts set forth herein and for the use and benefit
of the Certificateholders.


 


SECTION   2.02  Name.


 


The name of the
Trust shall be “CRIIMI MAE Class D Trust”, in which name the Trustee, on behalf
of the Trust, may do the following: (i) engage in the transactions contemplated
hereby; (ii) make and execute contracts and other instruments; (iii) acquire
the Underlying Assets; (iv) sue and be sued; and (v), subject to Section 2.03,
enter into such other transactions and take such other actions as are necessary
or desirable to carry out the provisions hereof.


 


SECTION   2.03  Purposes, Authority and Powers.


 


The purposes for
which the Trust is created and established are (i) to acquire and hold the
Underlying Assets and (ii) to issue the Certificates.  In addition to all authority, express or implied, otherwise granted
to the Trustee hereunder and under applicable law, the Trustee shall have the
authority on behalf of the Trust to enter into all transactions and agreements
described in the immediately preceding sentence and to perform all acts in
furtherance thereof, including, without limitation, the execution and


 

















 


delivery of the Certificates and the exercise and enforcement of all
rights and remedies under the Underlying Assets; provided, however, that the
Trust shall not have power to perform any act or engage in any business
whatsoever except for the foregoing and any activity reasonably incidental
thereto or appropriate therefor.  The
investments to be made by the Trust are in the Underlying Assets and, as
provided herein, Eligible Investments. 
After the Closing Date, the Trust shall not issue additional
Certificates (other than upon transfer of existing Certificates) or purchase or
otherwise acquire any additional securities or other assets (other than
Eligible Investments) and shall not dispose of Underlying Assets, in each case
except as provided herein.  The Trust
shall not incur any indebtedness.


 


SECTION   2.04  Term and Termination; Unclaimed
Moneys.


 


(a)           This Agreement shall
remain in effect until the date upon which all the Underlying Assets of the
Trust have been retired and the payments on such Underlying Assets have been
distributed to Certificateholders in accordance with this Agreement; provided,
however, that in no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the descendants of
Prescott Sheldon Bush, the late United States Senator, living on the date
hereof.


 


(b)           If any moneys payable
in respect of any Certificates are not claimed by the Certificateholder
entitled thereto, the Trustee shall segregate and hold such moneys in trust,
without liability for interest thereon, for the account of the
Certificateholder entitled thereto.  All
such moneys that remain unclaimed on the date that is two years after the date
on which such moneys were originally due shall be disbursed to the Depositor
and such Certificateholder shall thereafter look only to the Depositor for
payment.


 


(c)           Upon the dissolution of
the Trust, the Trustee shall proceed as promptly as practicable to wind up the
affairs of the Trust and distribute any remaining assets thereof in an orderly
and businesslike manner.  As part of the
winding up of the affairs of the Trust, the following steps shall be taken in
the following order:


 


(i)            If on the Underlying
Final Payment Date any assets remain in the Trust, the Trustee shall take, or
cause to be taken, appropriate action to sell or distribute all such assets on
the instructions of the Certificateholders holding a majority of the aggregate
outstanding principal balance of both Classes. 
The proceeds of any such sale shall be distributed as promptly as
practicable thereafter pursuant to Section 5.01.  Any such distribution shall be made in accordance with such
instructions.


 


(ii)           The Depositor shall pay
all liabilities of the Trust.


 


(d)           No Certificateholder
shall be entitled to revoke the Trust.


 


ARTICLE III

THE UNDERLYING ASSETS


 


SECTION   3.01  Transfer of Underlying Assets.


 


(a)           Simultaneously with the
execution and delivery of this Agreement, the Depositor, in exchange for all
the Certificates, is hereby transferring to the Trust, and depositing into the
Trust, forever, all right, title and interest of the Depositor in and to the
Underlying Assets, to have and to hold all of the same, together with all
revenues, issues, profits and proceeds thereof and therefrom and appurtenances
thereto to the Trust, in each case for the common and equal use, benefit and
security of all Persons who shall from time to time be Certificateholders and
without preference of any of the Certificates over any of 


 


2

















 


the others by reason of priority in the time of issue, sale or
negotiation thereof except as provided herein. The parties hereto agree and
intend that the Underlying Assets Transfer shall be a transfer and not a loan
or a pledge to secure a loan.


 


(b)           The Depositor shall, in
connection with the Underlying Assets Transfer, be deemed to have represented
to the Trustee that (i) the Depositor or its nominee was the sole owner of the
Underlying Assets, and (ii) the Underlying Assets Transfer results in the
transfer, sale, conveyance and assignment to the Trust, and the deposit into
the Trust, of all right, title and interest of the Depositor in and to the
Underlying Assets free and clear of
any lien, security interest, pledge, claim or other encumbrance created by or
through the Depositor.  EXCEPT AS STATED
IN THE PRECEDING SENTENCE, THE UNDERLYING ASSETS TRANSFER IS MADE WITHOUT
RECOURSE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY
WAIVED BY THE TRUSTEE AND EACH CERTIFICATEHOLDER.


 


(c)           To further protect the
Trustee’s interest in the Underlying Assets, the Depositor hereby grants to the
Trustee a security interest in all of the Depositor’s right, title and interest
in, to and under the Underlying Assets to secure all of the Depositor’s
obligations under this Agreement.


 


SECTION  
3.02  No
Liability of the Depositor or the Trustee on Underlying Assets.


 


The obligor with
respect to the Underlying Assets is the Underlying Issuer.  The Depositor (without limiting the
generality of Section 3.01(b)) and the Trustee shall have no obligation on or
with respect to the payment of any amount payable with respect to any
Underlying Asset, except for the obligation of the Trustee to make
distributions from Available Funds as provided herein.


 


SECTION  
3.03  Notice of
Underlying Default.


 


If a Responsible
Officer of the Trustee has actual knowledge or receives written notice of the
happening of an Underlying Default, the Trustee shall promptly give notice
thereof to the Depositor, and each Certificateholder.  Such notice shall set forth (i) to the extent that a Responsible
Officer of the Trustee has such knowledge or notice, the date and nature of
such Underlying Default and (ii) any other information that the Trustee may deem
appropriate.


 


SECTION  
3.04  Enforcement
of Rights, Votes, Consent and Waivers with Respect to Underlying Assets.


 


(a)           The Trustee shall seek
written instructions from the Relevant Instructing Certificateholders (as
defined below) in connection with any (i) enforcement of rights of the Trustee
as holder of the Underlying Assets, whether in connection with an Underlying
Default or otherwise, and (ii) any direction, vote, consent, waiver or other
similar authorization required or permitted in respect of the Underlying
Assets, whether in connection with an Underlying Default or otherwise (any such
enforcement, direction, vote, consent, waiver or other similar authorization,
an “Underlying Holder Action”).  The
Trustee shall take such Underlying Holder Action solely as directed by the
Relevant Instructing Certificateholders, and, in the absence of such written
direction, the Trustee shall not take such Underlying Holder Action (and each
Certificateholder acknowledges and agrees that the Trustee shall have no
responsibility for the consequences of the absence of such Underlying Holder
Action in relation to the rights of the Trust as owner of the Underlying
Assets).  As used in this Section 3.04,
the following terms shall have the following meanings:


 


“Relevant Instructing Certificateholders” means (i) with respect to any
Underlying Holder Action in respect of the Underlying Collateral, the
Certificateholders holding a majority of


 


3

















 


the aggregate outstanding Principal Balance of the
Controlling Class, (ii) with respect to any other Underlying Holder Action
relating to the Class D-1 Bonds, the Certificateholders holding a majority of
the aggregate outstanding Principal Balance of the Class A Certificates, (iii)
with respect to any other Underlying Holder Action relating to the Class A
Percentage of the Class D-2 Bonds, the Certificateholders holding a majority of
the aggregate outstanding Principal Balance of the Class A Certificates and
(iv) with respect to any other Underlying Holder Action relating to the Class B
Percentage of the Class D-2 Bonds, the Certificateholders holding a majority of
the aggregate outstanding Principal Balance of the Class B Certificates;
provided, however, that, in any case in which any Underlying Holder Action
shall be subject to a Unanimity Requirement (as defined below), “Relevant
Instructing Certificateholders” means all the Certificateholders of both
Classes.


 


“Class A Percentage” means, on any date, a fraction (expressed as a
percentage), (a) the numerator of which is equal to the lesser of (i)
$100,500,000 and (ii) the aggregate outstanding Principal Balance of the Class
A Certificates as of such date, and (b) the denominator of which is equal to
the outstanding principal balance of the Class D-2 Bonds as of such date.


 


“Class B Percentage” means, on any date, 100% minus the Class A
Percentage.


 


“Controlling Class” means the Class B Certificates, unless the Net
Aggregate Principal Balance of the Class B Certificates is less than 25% of the
initial Principal Balance of the Class B Certificates, in which case the
“Controlling Class” shall be the Class with the largest Net Aggregate Principal
Balance then outstanding.


 


“Net Aggregate Principal Balance” means, as of any date of determination:


 


(a)           in the
case of the Class A Certificates, an amount equal to the lesser of (i) the
aggregate outstanding Principal Balance of the Class A Certificates as of such
date and (ii) the sum of the “Net Aggregate Principal Amounts” (as defined in
the Underlying Indenture) of the Class D-1 Bonds and the Class D-2 Bonds; and


 


(b)           in the
case of the Class B Certificates, an amount equal to the lesser of (i) the
aggregate outstanding Principal Balance of the Class B Certificates as of such
date and (ii) the sum of the “Net Aggregate Principal Amounts” (as defined in
the Underlying Indenture) of the Class D-1 Bonds and the Class D-2 Bonds,
reduced (to not less than zero) by the aggregate outstanding Principal Balance
of the Class A Certificates as of such date.


 


“Unanimity Requirement” means a requirement under the Underlying
Indenture to the effect that an Underlying Holder Action be directed, consented
to, waived, voted on or otherwise similarly authorized by (i) all the holders
of the Underlying Assets or (ii) each such holder affected thereby.


 


(b)           In connection with
enforcement of rights of the Trustee as holder of the Underlying Assets in
connection with an Underlying Default, such written direction by the Relevant
Instructing Certificateholders may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee as holder of
the Underlying Assets.


 


(c)           Notwithstanding the
foregoing, the Trustee shall be under no obligation to exercise or enforce any
of its rights with respect to the Underlying Assets (i) unless the Relevant
Instructing Certificateholders have offered to the Trustee security or
indemnity satisfactory to it against loss, liability or expense incurred in
compliance with such direction or (ii) if such direction is in conflict with
any law


 


4

















 


or would involve the Trustee in any personal liability
for which the Trustee is not satisfied that the foregoing security or indemnity
is adequate.


 


ARTICLE IV

THE CERTIFICATES


 


SECTION  
4.01  Authorization
of Certificates.


 


The authorized
amount of Certificates that may be issued by the Trust shall be limited to the
initial aggregate Face Amount thereof issued on the Closing Date as provided in
Section 4.02, together with Certificates issued pursuant to Sections 4.08, 4.09
and 4.14.


 


SECTION  
4.02  Issuance
of the Certificates; Initial Principal Balances; Certificates Represent
Beneficial Interest in Underlying Assets.


 


(a)           On the Closing Date,
the Certificates shall be issued in two Classes, consisting of $260,000,000
aggregate Face Amount of Class A Certificates and $59,001,000 aggregate Face
Amount of Class B Certificates.  The
Principal Balance of each Certificate on the Closing Date shall equal the Face
Amount thereof.


 


(b)           On the Closing Date,
the Trustee shall, in connection with the Transfer, (i) issue all the
Certificates to the Depositor; and (ii) register all the Certificates in such
name.


 


(c)           Each Certificate shall
evidence the related Certificateholder’s beneficial interest in the Underlying
Assets, upon the terms and subject to the conditions hereof.


 


(d)           In connection with the
initial issuance of the Certificates on the Closing Date, (i) the Depositor, as
the initial Certificateholder, shall provide a representation letter
substantially in the form of Exhibit D, and (ii) the Depositor shall, if the
Trustee so requests, provide to the Trustee a certificate setting forth
incumbency information relating to the officers of the Depositor.


 


SECTION  
4.03  Form, Denomination
and Delivery of Certificates.


 


(a)           The Certificates shall
be issued substantially in the form of Exhibit A, in each case with appropriate
completions (including by the selection of “A” or “B” in the provisions thereof
relating to Class designation), insertions, modifications and omissions to
comply with any applicable law or regulation or any applicable rules or
procedures of any applicable depositary.


 


(b)           All Certificates shall
be in registered form only.


 


(c)           Each Certificate shall
bear legends substantially as set forth in Exhibit A, in each case with
appropriate insertions, modifications and omissions to comply with any
applicable law or regulation or any applicable rules or procedures of any
applicable depositary.


 


(d)           Each Certificate shall
be issued and maintained in a Face Amount of $250,000 or an integral multiple
of $1 in excess thereof, notwithstanding any reduction in the Principal Balance
thereof.


 


(e)           Certificates shall be
typewritten or otherwise produced in written form in accordance with custom.


 


5

















 


(f)            Each Certificate shall
be executed on behalf of the Trust by the Trustee by the manual or facsimile
signature of one of its duly authorized officers. The Trustee shall duly
authenticate by manual signature and deliver all Certificates issued on the
Closing Date or issued pursuant to Section 4.08, 4.09 or 4.14.  No Certificate of a Class shall be entitled
to any benefits under this Agreement  or
be valid or obligatory for any purpose unless such Certificate shall have been
authenticated by a duly authorized officer of the Trustee.  If an officer of the Trustee whose signature
is on a Certificate ceases to hold office with the Trustee while the Certificate
is still outstanding, the Certificate shall nonetheless remain valid for all
purposes described herein.


 


SECTION  
4.04  Certificates
Identical.


 


Except for Class
designation, Face Amount and Principal Balance, all Certificates shall be
substantially identical and shall be in all respects equally and ratably
entitled to the benefits of this Agreement without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with, and subject to, the terms and provisions of
this Agreement.


 


SECTION  
4.05  Certificateholder
as Owner.


 


The
Certificateholder of a Certificate shall be treated as the owner of such
Certificate for all purposes (including for purposes of making payments with
respect to such Certificate and effecting the transfer, exchange or surrender
of such Certificate), and neither the Trustee nor the Depositor shall be
affected by any notice to the contrary.


 


SECTION  
4.06  Certificateholders
Bound by Agreement.


 


By accepting a
Certificate, a Certificateholder thereof shall have and shall be deemed to have
acknowledged and agreed that such Certificateholder is familiar with all the
terms of this Agreement and is bound by all the terms of this Agreement
applicable to such Certificateholder.


 


SECTION  
4.07  Registrar
and Register.


 


(a)           The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Registrar (located as of the Closing Date at the Designated Office)
for the purpose of registering Certificates and transfers and exchanges of
Certificates as provided herein.  The
Trustee may appoint, by a written instrument delivered to the Depositor and
each Certificateholder, any other bank or trust company to act as Registrar
under such conditions as the Trustee may prescribe; provided, however, that the
Trustee shall not be relieved of any of its duties or responsibilities
hereunder as Registrar by reason of such appointment.  If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its predecessor’s
duties as Registrar.


 


(b)           At all times during the
term of this Agreement, there shall be maintained at the office of the
Registrar (located as of the Closing Date at the Designated Office) the
Register, in which, subject to such reasonable regulations as the Registrar may
prescribe, the Registrar shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as provided herein.


 


(c)           The Depositor, the
Trustee (if it is no longer the Registrar) and each Certificateholder shall
have the right to inspect the Register or to obtain a copy thereof at all
reasonable times and to rely conclusively upon a certificate of the Registrar
as to the information set forth in the Register.


 


6

















 


SECTION  
4.08  Restrictions
and Procedures Relating to Certificate Transfers.


 


(a)           A Certificate Transfer
shall not be made unless each of the following conditions is satisfied:


 


(i)            the Certificate
Transfer relates to Certificates in the Proper Transfer Amount;


 


(ii)           (A) the transferee is a
Qualified Institutional Buyer or (B) the transferee is a Permitted
Institutional Investor and the Certificate Transfer is otherwise exempt from
the registration requirements of the Securities Act and the registration and/or
qualification requirements of any applicable state securities laws (it being
understood that the Trust and the Depositor have no obligation or intention to
effect any registration or qualification of the Certificates under any federal
or state securities laws);


 


(iii)          the transferee is not a
Plan or  a Person who is directly or
indirectly acquiring a Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, unless the prospective
transferee of such Certificate or interest therein provides the Registrar and
the Depositor with a certification of facts and an Opinion of Counsel which
establish to the satisfaction of the Trustee and the Depositor that such
Certificate Transfer and holding of such Certificate or interest therein will
not constitute or result in a non-exempt prohibited transaction under ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code and will not subject the Trust, the Depositor, the
Underlying Issuer, the Underlying Owner Trustee, the Manager (as defined in the
Underlying Indenture), the Company (as defined in the Underlying Indenture),
the Bond Registrar (as defined in the Underlying Indenture) or the Underlying
Indenture Trustee to any obligation in addition to those undertaken in the
Underlying Indenture or this Agreement, as applicable; and


 


(iv)          in the case of a
transfer of a Class B Certificate, the Trustee has received an Opinion of Counsel
to the effect that such Certificate Transfer: (1) will not adversely effect the
characterization for federal income tax purposes of the Debt Instruments as
indebtedness, or the portion of the Trust consisting of the Debt Instruments as
a “grantor trust” within the meaning of section 671 through 679 of the Internal
Revenue Code of 1986, and of the Class A Certificates as representing the
beneficial ownership of the Debt Instruments, and (2) will not cause the
Underlying Issuer or the Trust to be subject to an entity level tax to which
REITs and QRSs are not otherwise subject; provided that no such Opinion
of Counsel shall be required to the extent the Trustee receives a certification
from the transferor in the form of Exhibit E that such transfer is in connection
with (x) any pledge by CRIIMI MAE Inc. or any subsidiary thereof to secure
indebtedness of CRIIMI MAE Inc. or such subsidiary or any repurchase
transaction treated as indebtedness of CRIIMI MAE Inc. or such subsidiary for
federal income tax purposes or (y) any sale of the Class B Certificates by the
related lender under the related pledge or repurchase transaction described in
clause (x) upon a default under any such indebtedness.


 


(b)           The Registrar shall
refuse to register any Certificate Transfer unless it receives (and, upon
receipt, may conclusively rely upon):


 


(i)            a certificate from the
Certificateholder desiring to effect such Certificate Transfer substantially in
the form of Exhibit B; and


 


(ii)           a certificate from such
Certificateholder’s prospective transferee substantially in the form of Exhibit
C;


 


7

















 


provided,
however, that certifications may, with the consent of the Depositor and
the Registrar, be omitted from a certificate described in the preceding clause
(i) or (ii) to the extent that one or more Opinions of Counsel shall be
delivered in lieu of such certifications.


 


(c)           None of the Trust, the
Trustee and the Depositor is obligated to register or qualify, as applicable,
any Certificates under the Securities Act or any other securities law or to
take any action not otherwise required under this Agreement to permit any
Certificate Transfer without registration or qualification.  Any Certificateholder desiring to effect a
Certificate Transfer hereby indemnifies the Trust, the Trustee and the
Depositor from and against any loss, claim, damage, liability and expense
(including attorneys’ fees and disbursements) that may result if such transfer,
sale, pledge or other disposition is effected other than in compliance with all
applicable laws and this Agreement.


 


(d)           If the transferee in a
Certificate Transfer is a fiduciary or agent for one or more accounts, such
transferee shall be required to deliver to the Registrar a certification to the
effect that, and such other evidence as may be reasonably required by the
Trustee to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make any certifications,
representations, warranties and other agreements or undertakings with respect
to each such account as set forth in this Section 4.08.  The Registrar and the Trustee shall have no
obligation to act with respect to the preceding sentence unless and except to
the extent it has actual knowledge that a proposed transferee is acting in such
an agency or fiduciary capacity.


 


(e)           Subject to the
preceding provisions of this Section 4.08, upon surrender for registration of
transfer of any Certificate at the offices of the Registrar, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class having an aggregate
Face Amount equal the Face Amount of the Certificate surrendered.


 


(f)            Any Certificateholder
shall have the right to exchange any Certificate held by it for other
Certificates of authorized denominations of the same Class in each case having
an aggregate Face Amount equal the Face Amount of the Certificate exchanged, in
which case the Trustee shall execute, authenticate and deliver the Certificates
that the Certificateholder making the exchange is entitled to receive.


 


(g)           Every Certificate
presented or surrendered for transfer or exchange shall be duly endorsed by, or
be accompanied by a written instrument of transfer in the form satisfactory to
the Registrar duly executed by, the Certificateholder thereof or his attorney
duly authorized in writing.


 


(h)           No service charge shall
be imposed for any transfer or exchange of Certificates, but the Trustee or the
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.


 


(i)            All Certificates
surrendered for transfer and exchange shall be physically canceled by the
Trustee, and the Trustee shall dispose of such canceled Certificates in
accordance with its standard procedures.


 


(j)            The provisions of this
Section 4.08 shall not apply to any repurchase of Class A Certificates by the
Depositor pursuant to Section 4.14.


 


SECTION  
4.09  Lost
Certificates, Etc.


 


If any Certificate
shall be lost, stolen, mutilated or destroyed, the Trustee shall execute and
deliver a Certificate of like form and tenor in exchange and substitution for
such mutilated Certificate, or


 


8

















 


in lieu of and in substitution for such destroyed, lost or stolen
Certificate, upon the provision by the Certificateholder thereof to the Trustee
of evidence satisfactory to the Trustee of such destruction or loss or theft of
such Certificate, of the authenticity thereof and of such Certificateholder’s
entitlement thereto.  The Trustee may,
as a condition to recognizing the Person claiming to be the Certificateholder
of a destroyed, lost or stolen Certificate as the Certificateholder of such
Certificate, request such Person to provide to the Trustee indemnification and
documentation reasonably satisfactory to the Trustee.


 


SECTION  
4.10  Conditions
to Deliveries, Transfers and Exchanges.


 


As a condition
precedent to the execution and delivery, issuance, transfer, exchange or
surrender of any Certificate, the Trustee may require:  (i) payment by the applicable
Certificateholder or its transferee to the Trustee of a sum sufficient for the
payment (or, in the event that the Trustee shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto; (ii) payment by the applicable Certificateholder or its transferee to
the Trustee of such service charges expressly required to be paid hereunder in
connection with any such action; (iii) provision by the applicable
Certificateholder or its transferee to the Trustee of such proof of identity or
residence, or other information (including the number of an account for wire
transfer of funds and the taxpayer identification number of any transferee), or
such representations and warranties or such assurances (including a signature
guaranty), or execution by the applicable Certificateholder or its transferee
of such certificates, as the Trustee may reasonably deem necessary or proper
including but not limited to the delivery of all opinions and certificates
prescribed in any provisions restricting the transfer of Certificates; and (iv)
compliance by the applicable Certificateholder and its transferee with such
regulations, if any, as the Trustee may reasonably establish that are not
inconsistent with the provisions of this Agreement.


 


SECTION  
4.11  List of
Certificateholders.


 


Any
Certificateholder may, by written application to the Trustee, request access to
the list maintained by the Trustee of Certificateholders (of both Classes) for
purposes of communicating with other Certificateholders with respect to their
rights hereunder or under the Certificates, which request shall be accompanied
by a copy of the communication that such Certificateholder proposes to
transmit.  If any Certificateholder
makes a written request to the Trustee, and such request states that such
Certificateholder desires to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication that such Certificateholder proposes
to transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or, if it is not the Registrar, cause the Registrar to afford)
the requesting Certificateholder access during normal business hours to the
most recent list of Certificateholders held by the Registrar.  Every Certificateholder, by receiving such
access, acknowledges that neither the Trustee nor the Registrar will not be
held accountable in any way by reason of the disclosure of any information as
to the names and addresses of any Certificateholder regardless of the source
from which such information was derived.


 


SECTION  
4.12  Standard
of Conduct.


 


In exercising any
of its rights as a Certificateholder hereunder, subject to the terms and
conditions hereof, a Certificateholder shall not have any obligation or duty to
any other Person (including any other Certificateholder of either Class) or to
consider or take into account the interests of any such other Person and shall
not be liable to any such other Person for any action taken by it or them or at
its or their direction or any failure by it or them to act or to direct that an
action be, without regard to whether such action or inaction benefits or
adversely effects any such other Person, except for any liability to which such
Certificateholder may be subject to the extent that the same results from such
Certificateholder’s taking or directing an action, or failing to take or direct
an action, in violation of the express terms hereof.


 


9

















 


The foregoing shall be equally applicable to a Certificateholder that
is, or that is an Affiliate of a Person that is, the Depositor or the Trustee.


 


SECTION  
4.13  Provision
of Copies of this Agreement to Certificateholders.


 


The Trustee shall
furnish, without charge, but at the reasonable expense of the Depositor, to
each Certificateholder that so requests in writing an electronic copy of this
Agreement and any amendments or other modifications thereto.


 


SECTION  
4.14  Optional
Repurchase By Depositor.


 


(a)           The
Depositor may in its sole discretion, on any Distribution Date on or after the
June 2009 Distribution Date, repurchase all the Class A Certificates from the
existing Certificateholders thereof (the “Existing Class A Certificateholders”)
at the Optional Repurchase Price.  Any
such repurchase shall be made upon not less than thirty (30) days’ written
notice from an Authorized Officer of the Depositor to the Trustee (any such
notice a “Repurchase Notice” and the date of any such repurchase specified in
such notice being an “Optional Repurchase Date”).  Promptly upon its receipt of a Repurchase Notice, the Trustee
shall notify the Existing Class A Certificateholders of its receipt thereof and
the Optional Repurchase Date specified therein.


 


(b)           Not
later than the third Business Day prior to the Optional Repurchase Date, the
Depositor shall calculate the Optional Repurchase Price and shall notify the
Trustee thereof (which notice shall be accompanied by a certificate setting
forth in reasonable detail the calculation of the Remaining Average Life, the
calculation of the Remaining Scheduled Payments, and the mathematical formula
used to calculate the Discounted Value). 
Promptly upon its receipt of such notice and confirmation of the
Optional Repurcahse Price as so calculated by the Depositor, the Trustee shall
notify the Existing Class A Certificateholders of such Optional Repurchase
Price.   The calculation of the Optional
Repurchase Price by the Depositor, as so confirmed by the Trustee, shall be
conclusive and binding absent manifest error. 
For purposes of calculating and confirming the Optional Repurchase
Price, the Trustee shall be entitled to rely on the calculation of the
Remaining Average Life, the calculation of the Remaining Scheduled Payments and
the mathematical formula for determining the Discounted Value furnished to it
by the Depositor, in each case absent manifest error.


 


(c)           Before
12:00 p.m. New York time on the Optional Repurchase Date, the Depositor shall
deposit the Optional Repurchase Price with the Trustee.  If the Optional Repurchase Price shall have
been so deposited with the Trustee, then, on the Optional Repurchase Date and
notwithstanding anything in this Agreement to the contrary:


 


(i)            the Trustee shall pay
the Optional Repurchase Price to the Existing Class A Certificateholders pro rata
based on the respective Face Amounts of the Class A Certificates held by
each;  provided that no such
Existing Class A Certificateholder shall be entitled to receive its pro rata
share of the Optional Repurchase Price unless and until it shall have surrendered
its Class A Certificate (each a “Repurchased Certificate”) to the Trustee or
furnished to the Trustee (x) evidence satisfactory to the Trustee that such
Repurchased Certificate has been lost, stolen, mutilated or destroyed and (y)
such indemnification and documentation as the Trustee or the Depositor may
reasonably request as a condition to recognizing such Existing Class A
Certificateholder as the holder of such Repurchased Certificate;


 


(ii)           all Class A
Certificates shall be deemed to have been transferred to the Depositor and,
accordingly, (x) the Trustee shall execute, authenticate and deliver, in the
name of the 


 


10

















 


Depositor, one or more new Class A Certificates having
an aggregate Face Amount equal to the Face Amount of the Class A Certificates
immediately prior to the Optional Repurchase Date, (y) the Depositor shall be
deemed to be the sole Certificateholder of the Class A Certificates for all
purposes (except that any distributions to be made in respect of the Class A
Certificates pursuant to Section 5.01 on the Optional Repurchase Date shall
continue to be made to the Existing Class A Certificateholders) and (z) the
Registrar shall register the Depositor as the Certificateholder of all Class A
Certificates in the Register effective as of the Optional Repurchase Date; and


 


(iii)          regardless of whether
the Repurchased Certificates held by each such Existing Class A
Certificateholder shall have been surrendered to the Trustee, such Repurchased
Certificates shall be deemed to have been canceled in exchange for the new
Class A Certificates issued to the Depositor pursuant to clause (ii), and no
holder of such Repurchased Certificates shall have any further right to receive
any distributions hereunder other than (x) distributions that would otherwise
be made to such holder on such Optional Repurchase Date pursuant to Section
5.01 and (y) the right to receive payment of its pro rata share of the
Optional Repurchase Price upon surrender of such Repurchased Certificate as set
forth in clause (i).


 


ARTICLE V

DISTRIBUTIONS


 


SECTION  
5.01  Distributions.


 


(a)           On each Distribution
Date, subject to the other applicable provisions of this Agreement, so long as
(i) the Underlying Assets have not been declared to be or automatically become
due and payable following the occurrence of an Underlying Event of Default
(excluding any such declaration that has been rescinded in accordance with the
Underlying Indenture) and (ii) all accrued interest in respect to the Underlying
Assets for the related Underlying Payment Date and all prior Underlying Payment
Dates has been paid in full, the Trustee shall distribute any Underlying
Payments with respect to any Distribution Date to the Certificateholders as of
the related Record Date as follows:


 


(i)            First:  To the Class A Certificateholders, as
interest, an amount equal to (i) the amount of interest accrued at the
Certificate Rate on the aggregate Principal Balances of the Class A
Certificates during the Certificate Accrual Period with respect to such
Distribution Date plus (ii) any such interest accrued during any preceding
Certificate Accrual Period but not paid on any preceding Distribution Date;


 


(ii)           Second:  To the Class B Certificateholders, as
interest, an amount equal to (i) the amount of interest accrued at the
Certificate Rate on the aggregate Principal Balances of the Class B
Certificates during the Certificate Accrual Period with respect to such
Distribution Date plus (ii) any such interest accrued during any preceding
Certificate Accrual Period but not paid on any preceding Distribution Date;


 


(iii)          Third:  To the Class A Certificateholders, as
principal, until the aggregate Principal Balance of the Class A Certificates
shall have been reduced to zero; and


 


(iv)          Fourth:  To the Class B Certificateholders, as
principal, until the aggregate Principal Balance of the Class B Certificates
shall have been reduced to zero.


 


(b)           On each Distribution
Date where (i) the Underlying Assets have been declared to be or have automatically
become due and payable following the occurrence of an Underlying Event of
Default (excluding any such declaration that has been rescinded in accordance
with the Underlying Indenture) or


 


11

















 


(ii) all accrued interest in respect to the Underlying Assets for the
related Underlying Payment Date and all prior Underlying Payment Dates has not
been paid in full, subject to the other applicable provisions of this
Agreement, the Trustee shall distribute any Underlying Payments with respect to
any Distribution Date to the Certificateholders as of the related Record Date
as follows:


 


(i)            First:  To the Class A Certificateholders, as
interest, an amount equal to (i) the amount of interest accrued at the
Certificate Rate on the aggregate Principal Balances of the Class A
Certificates during the Certificate Accrual Period ending on or most recently
preceding such Distribution Date plus (ii) any such interest accrued during any
preceding Certificate Accrual Period but not paid on any preceding Distribution
Date;


 


(ii)           Second:  To the Class A Certificateholders, as
principal, until the aggregate Principal Balance of the Class A Certificates
shall have been reduced to zero;


 


(iii)          Third:  To the Class B Certificateholders, as
interest, an amount equal to (i) the amount of interest accrued at the
Certificate Rate on the aggregate Principal Balances of the Class B
Certificates during the Certificate Accrual Period ending on or most recently
preceding such Distribution Date plus (ii) any such interest accrued during any
preceding Certificate Accrual Period but not paid on any preceding Distribution
Date; and


 


(iv)          Fourth:  To the Class B Certificateholders, as
principal, until the aggregate Principal Balance of the Class B Certificates
shall have been reduced to zero.


 


(c)           All distributions
pursuant to this Section 5.01 shall be made to the Certificateholders of each
Class in proportion to the Principal Balances of the Certificates of such Class
held by them.


 


(d)           On each Distribution
Date, subject to the other applicable provisions of this Agreement, the Trustee
shall distribute any Reinvestment Income with respect to such Distribution Date
to the Certificateholders, as interest, in proportion to the amounts
distributed to them pursuant to Section 5.01(a) or 5.01(b), as applicable.


 


(e)           On each Distribution
Date, subject to the other applicable provisions of this Agreement, the Trustee
shall distribute any Underlying Make-Whole Payments to the Certificateholders
in proportion to the payments of principal distributed to them pursuant to
Section 5.01(a) or 5.01(b), as applicable.


 


(f)            For purposes of making
distributions under this Section 5.01, the Trustee shall not be deemed to have
notice or knowledge of any Underlying Event of Default unless a Responsible
Officer assigned to and working in the Designated Office has actual knowledge
thereof or unless written notice of any event which is in fact such an
Underlying Event of Default is received by the Trustee at the Designated Office,
and such notice references the Underlying Assets.


 


SECTION  
5.02  Method of Payment.


 


All distributions
pursuant to Section 5.01 shall be made by the Trustee to the
Certificateholders, in lawful money of the United States of America, by wire
transfer of immediately available funds to the respective accounts in the
United States of America of such Certificateholders; provided, however, that,
if any Certificateholder has not provided to the Trustee, at least 15 days
prior to the date of such payment, information as to an account in the United
States to which such payment may be wire transferred, the Trustee shall mail,
by first class mail, a check for the amount of such payment to the most recent
address of such Certificateholder set forth in the Register.


 


12

















 


SECTION  
5.03  Withholdings and other Taxes and Governmental Charges.


 


If the Trustee
shall be required to withhold from any amount otherwise distributable pursuant
to Section 5.01 an amount on account of taxes, the Trustee shall withhold the
amount so required to be withheld and the amount distributed in respect of such
amount shall be reduced accordingly.  If
any other tax or other governmental charge shall become payable by or on behalf
of the Trustee with respect to any Certificate, such tax or governmental charge
shall be payable by the related Certificateholder and may be withheld by the
Trustee from distributions to such Certificateholder.


 


SECTION   5.04  Subordination.


 


Anything in this
Agreement or the Certificates to the contrary notwithstanding, the Class B
Certificateholders agree for the benefit of the Class A Certificateholders that
the rights of the Class B Certificateholders to distributions shall be
subordinate and junior to the rights of the Class A Certificateholders to
distributions to the extent and in the manner set forth in Section 5.01.  If, notwithstanding Section 5.01, any Class
B Certificateholder shall have received any distribution contrary to Section
5.01, then, unless and until the aggregate Principal Balance of the Class A
Certificates shall have been reduced to zero, such distribution shall be
received and held in trust for the benefit of, and shall forthwith be paid over
and delivered to, the Trustee, which shall pay and deliver the same to the
Class A Certificateholders consistent with Section 5.01.


 


ARTICLE VI

DOCUMENT DISTRIBUTION AND REPORTING


 


SECTION  
6.01  Document Distributions.


 


(a)           On each Distribution
Date or as promptly thereafter as is practicable, the Trustee shall prepare and
make available on its internet website (initially located at www.etrustee.net)
to each Certificateholder (whether or not such Certificateholder receives a
payment on such Distribution Date) and the Depositor a statement setting forth:


 


(i)            the amount of
Available Funds with respect to such Distribution Date, separately identifying
the amount thereof attributable to Underlying Payments, Underlying Make-Whole
Payments  and Reinvestment Income;


 


(ii)           the aggregate amount
distributed pursuant to Sections 5.01(a), 5.01(b), (d) and 5.01(e), separately
identifying the amount pursuant to each subparagraph of Section 5.01(a) and
5.01(b) and, if applicable, the amount thereof attributable to sale proceeds
pursuant to Section 2.04(c);


 


(iii)          the aggregate Principal
Balance of each Class of Certificates before and after giving effect to the
amounts distributed on such Distribution Date;


 


(iv)          if applicable, the
amount of any shortfall between the amount that would have been distributed
with respect to either Class of Certificates if interest had been distributed
in full at the applicable Certificate Rate; and


 


(v)           such other information
as the Trustee shall decide to include.


 


13

















 


(b)           Promptly after the
Trustee receives it, the Trustee shall make available to the Certificateholders
and the Depositor a copy of any material document received by the Trustee, as a
holder of the Underlying Assets.


 


SECTION  
6.02  Rule 144A Reporting.


 


If the Trust is
not or ceases to be subject to Section 13 or 15(d) of the Exchange Act and is
not subject to the reporting requirements of Rule 12g3-2(b) under the Exchange
Act, the Depositor shall prepare and furnish to the Trustee for further
delivery to the Certificateholders upon the written request of any
Certificateholder the information described under paragraph (d)(4)(i) of Rule
144A under the Securities Act as contemplated thereby.  The Trustee shall have no responsibility for
reviewing or for the accuracy or sufficiency of such information for any
purpose.


 


ARTICLE VII

CERTAIN TAX MATTERS


 


SECTION  
7.01  Intended Tax Treatment.


 


It is the
intention of the parties hereto that the Class D-1 Bonds and the portion of the
Class D-2 Bonds, the Ownership of which is evidenced by the Class A
Certificates (the “Debt Instruments”) constitute a Grantor Trust for federal
income tax purposes.  The Trust is
intended to qualify as one or more fixed investment trusts within the meaning
of Treasury Regulation §301.7701-4(c), and it is neither the purpose nor the
intent of the parties hereto to create a partnership, joint venture or
association taxable as a corporation between or among any or all of the
Certificateholders, the Depositor or the Trustee.  In furtherance of the foregoing, the purpose of the Trust shall
be to protect and conserve the assets of the Trust, and the Trust shall not at
any time engage in or carry on any kind of business or any kind of commercial
or investment activity, except as provided in this Agreement.  In no event shall the Trustee have any power
to vary the investment of the Certificateholders in the Certificates or to
substitute new investments or reinvest so as to enable the Trust to take
advantage of variations in the market to improve the investment of the
Certificateholders in the Certificates. 
Neither the foregoing nor any other
provision of this Agreement precludes the treatment of the Underlying Assets
represented by the Class B Certificates as indebtedness for federal income tax
purposes if sold to a party other than the Depositor.


 


SECTION  
7.02  Grantor Trust Administration.


 


(a)           The Debt Instruments
will be characterized as indebtedness for federal income tax purposes. The
Trustee shall treat the portion of the Trust consisting of the Debt Instruments,
for tax return preparation purposes, as a Grantor Trust under the Grantor Trust
Provisions and, if necessary, under applicable state law and shall file
appropriate federal or state tax returns for each taxable year ending on or
after the last day of the calendar year in which the Class A Certificates are
issued.


 


(b)           The Trustee shall
prepare, sign and file all of the tax returns in respect of the Trust.  The out-of-pocket expenses of preparing and
filing such returns shall be borne by the Trustee, and the Trustee shall not
employ any external service providers that have not been approved for such
purpose by the Depositor.  The Trustee
shall comply with such requirement by filing Form 1041, indicating the name and
address of the Trust and signed by the Trustee but otherwise left blank.  There shall be appended to each such form a
schedule for each Certificateholder indicating such Certificateholder’s share
of income and expenses of the Trust for the portion of the preceding calendar
year in which such Certificateholder was a Certificateholder.  Such form shall be prepared in sufficient
detail to enable reporting on the cash or accrual method of accounting, as
applicable, and to report on such Certificateholder’s fiscal year if other than
the calendar year.  The Depositor shall
provide on a timely basis to the Trustee or its designee such


 


14

















 


information with respect to the Trust as is in its possession and
reasonably requested by the Trustee to enable it to perform its obligations
under this Section 7.02(b).  Without
limiting the generality of the foregoing, the Depositor, within 30 days
following the Trustee’s request therefor, shall provide in writing to the
Trustee such information as is reasonably requested by the Trustee for tax
purposes, and the Trustee’s duty to perform its reporting and other tax
compliance obligations under this Section 7.02(b) shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the Trustee to perform such obligations.


 


(c)           The Trustee shall
perform on behalf of the Trust all reporting and other tax compliance duties
that are required in respect thereof under the Code, the Grantor Trust Provisions
or other compliance guidance issued by the Internal Revenue Service or any
state or local taxing authority, including the furnishing to Certificateholders
of the schedules described in Section 7.02(b).


 


(d)           The Trustee shall
perform its duties hereunder so as to maintain the status of the Trust as a
Grantor Trust under the Grantor Trust Provisions.  The Trustee, and the Depositor each shall not knowingly take (or,
as applicable, cause the Trust to take) any action or (in the case of the
Trustee) fail to take or fail to cause to be taken any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
endanger the status of the portion of the Trust consisting of the Debt
Instruments as a Grantor Trust or result in the imposition of a tax upon the
Trust or its assets or transactions.


 


(e)           If any tax is imposed
on the Trust, such tax, together with all incidental costs and expenses
(including interest and penalties), shall be charged to and paid by (i) by the
Trustee, if such tax arises out of or results from a breach by the Trustee of
any of its obligations hereunder or (ii) otherwise, the Depositor.


 


ARTICLE VIII

ACCOUNTS


 


SECTION  
8.01  Custodial Account.


 


The Trustee shall
hold the Underlying Assets in a custodial account in the name of the Trust or
the Trustee (or in the name of a nominee for either thereof) at the Trustee or
at an Eligible Institution selected by the Trustee (the “Custodial Account”);
provided, however, that the Custodial Account may be a segregated subaccount of
another account or of another subaccount.


 


SECTION  
8.02  Collection Account.


 


(a)           The Trustee shall
establish an account at the Trustee or at an Eligible Institution into which
all Underlying Payments, Underlying Make-Whole Payments and all Reinvestment
Income shall be received and deposited from time to time and from which
Available Funds shall be distributed pursuant to Section 5.01 (the “Collection
Account”); provided, however, that the Collection Account may be a segregated
subaccount of another account or of another subaccount.  The Collection Account shall be held by and
in the name of the Trust or the Trustee (or in the name of a nominee for either
thereof).  To facilitate the
identification of Underlying Payments as distinguished from Reinvestment
Income, the Trustee shall have the authority to designate separate subaccounts
in the Collection Account relating to Underlying Payments, Underlying
Make-Whole Payments and Reinvestment Income.


 


(b)           The Trustee shall, at
the direction of the Depositor, invest moneys in the Collection Account on
behalf of the Trust in Eligible Investments selected by the Trustee, which
shall mature not later than the Business Day immediately preceding the
Distribution Date next following the date of such


 


15

















 


investment at which time such moneys shall be
distributed to Certificateholders in accordance with Section 5.01.  The Trustee shall select investments for the
investment of the Collection Account from among Eligible Investments.  If an investment ceases to meet the
requirements of an Eligible Investment as specified in the definition thereof,
the Trustee shall cause all moneys in such investment to be withdrawn and invested
in an Eligible Investment as promptly as practicable, but in any event within
five Business Days, after the Trustee’s actual knowledge or receipt of written
notice of the occurrence of such investment’s ceasing to meet such
requirements.  All net income and gain
realized from any such investments shall be added to the Collection Account as
Reinvestment Income, and the Trustee shall have no liability therefor.


 


SECTION  
8.03  Accounts and Assets To Be Held in Trust, Etc.


 


The Trustee’s
interest in the Accounts and the assets therein shall be solely that of the
Trustee.  The Trustee shall keep the
Accounts and the assets therein held separate from the general assets of the
Trustee by notations in its records in accordance with its trust practices.  For the avoidance of doubt, the
establishment of either or both Accounts as subaccounts as contemplated by
Section 8.01 or the first sentence of Section 8.02(a) shall not be deemed to be
a violation of the immediately preceding sentence of this Section 8.03.  The Trustee shall not subject either Account
or the assets therein to any right, charge, security interest, lien or claim of
any kind in favor of the Trustee or any Person claiming by or through the
Trustee or assign, transfer, pledge or otherwise dispose of or extend credit or
advance funds against either Account or the assets therein.  Without limiting the generality of the
foregoing, the Trustee shall not reduce (including by way of setoff), withhold
or delay any distribution to any Certificateholder on account of any amount
owed to the Trustee pursuant to Section 9.09 or 9.10 or otherwise.


 


ARTICLE IX

THE TRUSTEE


 


SECTION  
9.01  Use of Agents; Appointment of Additional Trustees.


 


(a)           The Trustee may perform
its obligations hereunder through one or more agents, which shall be chosen
with due care by the Trustee, taking into account, among other factors, the
services to be performed by such agent and such agent’s qualifications and
financial status.  The use of such
agents shall not alter or diminish the Trustee’s responsibilities as Trustee
hereunder, and the Trustee shall not be responsible for any willful misconduct
or negligence on the part of any agent appointed with due care.


 


(b)           For the purpose of
meeting the legal requirements of certain local jurisdictions, the Trustee will
have the power to appoint co-trustees or separate trustees of all or any part
of the Trust.  In the event of such
appointment, all rights, powers, duties and obligations conferred or imposed
upon the Trustee by this Agreement will be conferred or imposed upon the
Trustee and each such separate trustee or co-trustee jointly, or, in any
jurisdiction in which the Trustee shall be incompetent or unqualified to
perform certain acts, singly upon such separate trustee or co-trustee who shall
exercise and perform such rights, powers, duties and obligations solely at the
direction of the Trustee but which shall be independently responsible to the
Trustee for compliance with the requirements of such local jurisdiction.


 


SECTION  
9.02  Limited Authority of the Trustee.


 


(a)           The Trustee is to act
solely in a trustee capacity hereunder. 
Although the Trustee will act as a limited agent of the
Certificateholders in safekeeping and bookkeeping for the Underlying Assets,
the Trustee will have no authority to act for or assert any right on behalf of
any Certificateholder except as otherwise provided in this Agreement.


 


16

















 


(b)           The Trustee shall take
no action in respect of any Certificateholder or either Account or any
Underlying Assets not explicitly provided for herein; in particular, and not by
way of limitation, the Trustee shall not, except as provided herein:


 


(i)            fail to distribute
Available Funds as required hereby, except as otherwise provided herein;


 


(ii)           take any action with
respect to an Underlying Default;


 


(iii)          provide any investment
advice, investment counseling or portfolio management to any Certificateholder,
in a Certificateholder’s capacity as such; or


 


(iv)          guarantee or otherwise
enhance the creditworthiness of any Underlying Asset.


 


SECTION  
9.03  Waiver of Claims.


 


The Trustee hereby
waives all claims, liens, charges, equities and rights of setoff that it may
now or at any time hereafter have against any of the Underlying Assets.


 


SECTION  
9.04  Prevention or Delay in Performance by the Trustee.


 


The Trustee shall
not incur any liability to any Certificateholder if, by reason of any provision
of any present or future law or regulation thereunder, of any governmental
authority, or by reason of any act of God or war or other circumstance beyond
the control of the Trustee, the Trustee shall be prevented or forbidden from
doing or performing any act or thing which the terms of this Agreement provide
shall be done or performed.


 


SECTION  
9.05  Ownership of and Transactions in Underlying Assets and
Certificates.


 


The Trustee and
its Affiliates may own and deal in securities of the same issue as the
Underlying Assets, other securities issued under the Underlying Indenture and
any Certificates.


 


SECTION  
9.06  Exculpation of the Trustee and Related Matters.


 


(a)           The duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement.


 


(b)           The Trustee assumes no
obligation or liability hereunder to Certificateholders other than by reason of
the Trustee’s willful misconduct, bad faith or negligence in the performance of
such duties as are specifically set forth herein.


 


(c)           None of the provisions
of this Agreement shall require the Trustee to expend or risk its own funds or
otherwise to incur any liability, financial or otherwise, in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or indemnity satisfactory to it against such risk or liability is not assured
to it.


 


(d)           The Trustee shall not
be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with any direction of the Depositor or the
Certificateholders given under this Agreement.


 


17

















 


(e)           Whenever in the
administration of the provisions of this Agreement the Trustee shall deem it
necessary or desirable that a matter be proved or established before the
Trustee takes or permits any action to be taken hereunder, such matter shall
(except as otherwise may be expressly provided herein), in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by a certificate signed by one of the
Depositor’s officers, and delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, permitted or omitted by it
under the provisions of this Agreement in reliance thereon.


 


(f)            The Trustee shall not
be liable for any action or any failure to act by it in reliance upon the
advice of or information from legal counsel or accountants or any other person
believed by it in good faith to be competent to give such advice or
information.  The Trustee may
conclusively rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.  The Trustee shall not
be required to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement order, approval or other paper or document.


 


(g)           Without limiting the
generality of Section 3.02, in no event shall the Trustee be liable for the
selection of investments of the Trust or for investment losses incurred
thereon.  The Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of any
investment before its stated maturity or the failure of any Person to provide
timely investment directions to the Trustee.


 


(h)           No bank in which an
Account is maintained shall be deemed an agent of the Trustee.


 


(i)            The Trustee shall have
no responsibility for any statements contained in this Agreement, the
Certificates and any descriptive documentation relating thereto, except for the
express agreements of the Trustee herein or in the Certificates.


 


SECTION   9.07  Fidelity Bond.


 


The Trustee shall
maintain one or more fidelity bonds (which may be maintained through
self-insurance) in customary amounts to cover transactions of the kind
contemplated hereby.


 


SECTION  
9.08  Resignation and Removal of the Trustee; Appointment of
Successor Trustee.


 


(a)           The Trustee may at any
time resign as Trustee hereunder by written notice thereof delivered to the Depositor
and each Certificateholder, such resignation to take effect only upon the
appointment of a qualified successor Trustee and its acceptance of such
appointment as hereinafter provided.  If
the Trustee resigns hereunder, the Trustee shall use its best efforts to assist
the Depositor in obtaining a successor Trustee.


 


(b)           The Trustee may at any
time be removed, with or without cause, by the Depositor or by all the
Certificateholder upon 30 days’ written notice of such removal delivered to the
Trustee (and in the case of removal by Certificateholders, to the Depositor),
such removal to take effect only upon the appointment of a qualified successor
Trustee and its acceptance of such appointment as hereinafter provided.


 


18

















 


(c)           If the Trustee becomes
incapable of acting, is adjudged to be bankrupt or insolvent, or a receiver of
the Trustee or of its property is appointed, or any public officer takes charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Trustee may be removed by
court action instituted by the Depositor or any Certificateholder.


 


(d)           Any entity into which
the Trustee may be merged or converted or with which it may be consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any entity succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or delivery of any paper or any further
act on the part of the parties hereto; provided, however, that, if, upon the
occurrence of such event, such entity shall not be eligible to serve as trustee
pursuant to Section 9.08(e), such event shall be deemed to be an act of
resignation by the Trustee pursuant to Section 9.08(a), and such Trustee shall
deliver notice thereof pursuant to Section 9.08(a) upon the occurrence of such
event.


 


(e)           In case at any time the
Trustee acting hereunder shall resign or be removed, the Depositor may appoint
a successor trustee within 90 days after the delivery of a notice of
resignation or a notice of removal.  Any
successor trustee shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State thereof,
authorized to act as trustee, having a combined capital and surplus of at least
$200,000,000, rated at least BBB+ by S&P and Baa2 by Moody’s and subject to
supervision or examination by federal or state authority.  If no successor trustee has been appointed
as successor trustee within 90 days after the Trustee has given written notice
of its election to resign, the resigning Trustee may, at the expense of the
Depositor, petition any court of competent jurisdiction for the appointment of
a successor trustee.


 


(f)            Any successor trustee
appointed hereunder shall execute and deliver to the Depositor and the retiring
Trustee an instrument accepting such appointment and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
trustee shall become vested with all the rights and duties of the retiring
Trustee.  The retiring Trustee shall (i)
upon payment of its charges, duly cause the assets of the Trust to be
transferred to such successor trustee which shall deposit the same in separate
Accounts held by such successor trustee and duly assign, transfer and deliver
to such successor trustee all records, Certificates and rights to all moneys
held by such retiring Trustee hereunder, and (ii) pay over to such
successor trustee any fees or charges previously paid to the Trustee in respect
of duties not yet performed under this Agreement which remain to be performed
by such successor trustee.  Any successor
Trustee shall (i) promptly mail notice of its appointment to all affected
Certificateholders, (ii) automatically be bound by all terms of this Agreement
and (iii) promptly take such steps and establish such books and records as
may be necessary or appropriate for it to comply with the provisions of this
Agreement.


 


SECTION  
9.09  Fees and Expenses of the Trustee.


 


The reasonable
charges, fees and reimbursements for services provided by the Trustee hereunder
shall be determined by mutual written agreement of the Depositor and the
Trustee, and the Depositor shall pay all such agreed charges, fees and
reimbursements of the Trustee; provided, however, that (i) the Depositor shall
not pay or be liable for the charges, fees and reimbursements that are expressly
required by this Agreement to be paid by Certificateholders or the Trustee, and
(ii) the Trustee shall not be released from any of its duties hereunder as a
result of the failure of the Depositor to pay any such agreed charges, fees or
reimbursements.


 


19

















 


SECTION  
9.10  Indemnification of the Trustee.


 


(a)           The Depositor agrees to
indemnify the Trustee and any of its agents, officers, directors or employees
against, to defend, and to hold them harmless from, any losses, claims,
damages, expenses or other liabilities, joint or several, arising for any
reason (the “Trustee Liabilities”), and any related out-of-pocket expenses
(including reasonable attorneys’ fees and disbursements) (the “Trustee
Expenses”), which may arise out of acts performed by the Trustee and any of its
agents, officers, directors or employees in accordance with this Agreement or
as a result of its participation in the transactions contemplated hereby, other
than any Trustee Liabilities and Trustee Expenses arising out of
(i) negligence, willful misconduct or bad faith on the part of the Trustee
and any of its agents, officers, directors or employees or (ii) the breach
of any of the Trustee’s express covenants set forth in this Agreement.


 


(b)           Promptly after receipt
by the Trustee of actual knowledge or notice of any demand, claim or
circumstances which gives rise or which, with the lapse of time, would or might
give rise to a claim or the commencement (or threatened commencement) of any action,
proceeding or investigation that may result in a liability for which indemnity
may be sought hereunder, the Trustee shall give notice thereof to the
Depositor.  Such notice shall describe
the claim, action, proceeding or investigation in reasonable detail, and shall
indicate, to the extent known, the amount (estimated, if necessary and to the
extent feasible) of the Trustee Liabilities and Trustee Expenses that have been
or may be incurred by the Trustee.  The
Depositor may elect to compromise or assume the defense of, at its own expense
and by its own counsel, any such claim, action, proceeding or investigation and
the Trustee shall cooperate in the compromise of, or defense against, such
claim, action, proceeding or investigation. 
The Trustee shall not enter into any settlement without the consent of
the Depositor.


 


SECTION  
9.11  Limitation of Liability.


 


It is expressly
acknowledged and agreed by the parties hereto that (i) this Agreement is
executed and delivered by the institution (initially, LaSalle Bank National
Association) serving as Trustee, not individually or personally but solely as
the Trustee, in the exercise of the powers and authority conferred and vested
in it, (ii) any  representations, undertakings
and agreements herein or pursuant hereto made on the part of the Trust are made
and intended not as personal representations, undertakings and agreements by
the institution (initially, LaSalle Bank National Association) serving as
Trustee but are made and intended for the purpose of binding only the Trust,
(iii) nothing herein contained shall be construed as creating any liability on
the institution (initially, LaSalle Bank National Association) serving as
Trustee, individually or personally, to perform any covenant of the Trust
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Agreement and by any Person claiming
by, through or under such parties, and (iv) under no circumstances shall the
institution (initially, LaSalle Bank National Association) serving as Trustee
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement.


 


ARTICLE X

THE DEPOSITOR


 


SECTION  
10.01  Prevention or Delay in Performance by the Depositor.


 


The Depositor
shall not incur any liability to the Trustee or any Certificateholder if, by
reason of any provision of any present or future law or regulation thereunder,
of any governmental authority, or by reason of any act of God or war or other
circumstance beyond the control of the Depositor, the Depositor


 


20

















 


shall be prevented or forbidden from doing or performing any act or
thing which the terms of this Agreement provide shall be done or performed.


 


SECTION  
10.02  Ownership of and Transactions in Underlying Assets and
Certificates.


 


The Depositor, the
Trustee and their respective Affiliates may own and deal in securities of the
same issue as the Underlying Assets, other securities issued under the
Underlying Indenture and any Certificates.


 


SECTION  
10.03  Exculpation of the Depositor.


 


The Trustee hereby
agrees, and each Certificateholder, by and upon accepting a Certificate agrees
and shall be deemed to agree, that except as expressly provided herein, the
Depositor shall not be obligated or liable to the Trustee or the
Certificateholders with respect to (i) any payment with respect to the
Underlying Assets or any Underlying Default, (ii) any breach by the Trustee of
its obligations under this Agreement or (iii) any other event or circumstance
relating to the execution, delivery, issuance, transfer, exchange or surrender
of Certificates, the distribution of Available Funds or the enforcement of the
rights of the Certificateholders against the Trustee or with respect to the
Underlying Assets.


 


ARTICLE XI

MISCELLANEOUS


 


SECTION   11.01  Amendment.


 


This Agreement may
be amended or otherwise modified by the Trustee and the Depositor but only in
writing and subject to the conditions that (i) Certificateholders representing
a majority of the aggregate outstanding Principal Balance of the Certificates
of both Classes shall have consented to such amendment or other modification
and (ii) the Trustee shall have received such opinions and other documentation
in connection with such amendment or other modification as the Trustee shall
reasonably request; provided, however, that, if the sole effect of any such
amendment or modification is to change the name of the Trust (without requiring
any Certificateholder to exchange any Certificates in connection therewith), no
consent of Certificateholders shall be required pursuant to the preceding
clause (i), and the Trustee shall (subject to the next sentence) agree to such
amendment or modification if it is otherwise in proper form and each other
applicable provision of this Agreement relating thereto is complied with; and
provided further that no such amendment or modification shall (x) without the consent of all Certificateholders
adversely affected thereby, directly or indirectly (a) alter the amount or
timing of distributions on the Certificates, (b) change the
Principal Balance of any Certificates, (c) modify any provisions hereof
relating to a repurchase of  the Class A
Certificates pursuant to Section 4.14, (d) reduce the percentage of the
aggregate Principal Balance of Certificates the consent or direction of the
Certificateholders of which is required to allow or direct the Trustee to take
any action with respect to the Underlying Assets pursuant to Section 3.04  or (e) amend this Section 11.01, or (y)
without the consent of all Certificateholders, be inconsistent with the
treatment for federal income tax purposes of the Trust as described in Section
7.01 hereof.  Notwithstanding the
foregoing, the Trustee shall not be required to agree to any such amendment or
other modification that affects its rights, duties or immunities.


 


SECTION   11.02  Counterparts.


 


This Agreement may
be executed in any number of counterparts, and by the Depositor and the Trustee
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be


 


21

















 


deemed
an original, but all such counterparts taken together shall constitute one and
the same instrument.  By and upon
acceptance of a Certificate, each Certificateholder shall have agreed and be
deemed to have agreed to be bound by all the terms and conditions of this
Agreement.


 


SECTION  
11.03  Exclusive Benefit of Parties.


 


This Agreement is
for the exclusive benefit of the parties hereto and the Certificateholders, and
their respective successors and permitted assigns hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other
Person whatsoever.  The Depositor may at
any time assign all or any portion of its rights or obligations hereunder to
any Affiliate or (with the consent of the Trustee, such consent not to be
unreasonably withheld) to any other Person.


 


SECTION  
11.04  Invalidity of Provisions.


 


If any one or more
of the provisions contained in this Agreement or the Certificates should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby, provided that the
intent of the parties hereto is not thereby materially altered.


 


SECTION  
11.05  Notices and Other Communications.


 


All notices and
other communications required or permitted to be given hereunder shall be
deemed to have been duly given if sent by first class mail, postage prepaid,
personally delivered, delivered by overnight courier or sent by facsimile
transmission, addressed to the Depositor, the Trustee, any Certificateholder to
the address specified below, or to any other address furnished by such party to
each other party (or, in the case of a Certificateholder, to the Trustee).  Any such notice shall be deemed given when
received.


 


Address for the Depositor:


 


CRIIMI MAE CLASS D DEPOSITOR LLC

11200 Rockville Pike

Rockville, Maryland 20825

Attention: General Counsel

Telecopy:  301-231-0334

Reference:  CRIIMI MAE Class D Trust


 


Address for the Trustee:


 


LaSalle Bank National Association

135 S. LaSalle Street, Suite 1625

Chicago, Illinois 60603

Attention:  Global Securitization Trust
Services

Telecopy:  312-904-2084

Reference:  CRIIMI MAE Class D Trust


 


Address for any Certificateholder:


 


As specified in the Register


 


22

















 


SECTION   11.06  GOVERNING LAW.


 


THIS AGREEMENT AND
ALL RIGHTS HEREUNDER AND PROVISIONS HEREOF SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.


 


SECTION   11.07  Headings.


 


The headings of
Articles and Sections have been inserted for convenience only and are not to be
regarded as a part of this Agreement, or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Certificates.


 


SECTION  
11.08  No Petition Covenant.


 


Notwithstanding
any prior termination of this Agreement, the Trustee (in its individual
capacity) and the Depositor shall not, prior to the date which is one year and
one day after the termination of this Agreement acquiesce, petition or
otherwise invoke or cause the Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust.


 


23

















 


IN WITNESS
WHEREOF, the parties hereto have executed and delivered this Agreement as of
the date first set forth above.  By and
upon acceptance of a Certificate, each Certificateholder shall have agreed and
be deemed to have agreed to be bound by all the terms and conditions of this
Agreement.


 


	
   

  	
  CRIIMI MAE CLASS D DEPOSITOR LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Libera

  	
   

  
	
   

  	
   

  	
  Name: Mark Libera

  
	
   

  	
   

  	
  Title: Vice President and Acting General

  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  
	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian D. Ames

  	
   

  
	
   

  	
   

  	
  Name: Brian D. Ames

  
	
   

  	
   

  	
  Title: First Vice President

  



 

















 


APPENDIX A


 


DEFINITIONS


 


As used herein,
the following terms shall have the following meanings:


 


“Account” means
the Custodial Account or the Collection Account.


 


“Affiliate” means,
with respect to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person.  For the purposes of this definition,
“control”, when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing. “Affiliate” has the meaning specified in Rule 405 under the
Securities Act.


 


“Authorized
Officer” means any officer of the Depositor who is identified on the most
recent list of authorized officers delivered by the Depositor to the Trustee
(as such list may be modified or supplemented from time to time by the
Depositor).


 


“Available Funds”
means, with respect to each Distribution Date, (i) the aggregate amount
of  Underlying Payments, and Underlying
Make-Whole Payments with respect to such Distribution Date plus (ii) the
aggregate Reinvestment Income with respect to such Distribution Date.


 


“Business Day” has
the meaning provided in the Underlying Indenture; provided that for purposes of
calculating the Optional Repurchase Price and any notices required to be
delivered in connection therewith, “Business Day” shall mean a “U.S. Government
Securities Business Day” as defined in the 2000 ISDA Definitions published by
the International Swaps and Derivatives Association, Inc.


 


“Certificate”
means a Class A Certificate or a Class B Certificate.


 


“Certificate
Accrual Period” means an “Interest Accrual Period” as defined in the Underlying
Indenture as in effect on the Closing Date.


 


“Certificate Rate”
means the interest rate (and basis of application thereof) at which the
Underlying Assets bear interest from time to time pursuant to the Underlying
Indenture.


 


“Certificate
Transfer” means a transfer, sale, pledge or other disposition of any
Certificate or any interest therein.


 


“Certificateholder”
means each Person identified as a holder of a Certificate in the Register.


 


“Class” means, as
applicable, a class of Certificates (being the Class A Certificates or the
Class B Certificates) or a class of Certificateholders (being the Class A
Certificateholders or the Class B Certificateholders).


 


“Class A
Certificate” means a Class A Certificate issued by the Trust as evidenced by a
trust certificate in the form of Exhibit A, properly completed (including by
the selection of “A” in lieu of “B” in the provisions thereof relating to Class
designation) and executed, delivered and authenticated by the Trustee.


 


A-1-1

















 


“Class A Certificateholder”
means a Certificateholder of a Class A Certificate.


 


“Class B
Certificate” means a Class B Certificate issued by the Trust as evidenced by a
trust certificate in the form of Exhibit A, properly completed (including by
the selection of “B” in lieu of “A” in the provisions thereof relating to Class
designation) and executed, delivered and authenticated by the Trustee.


 


“Class B
Certificateholder” means a Certificateholder of a Class B Certificate.


 


“Class D-1 Bonds”
means $159,500,000 initial aggregate principal amount of Class D-1 Commercial
Mortgage Bonds, Series 1998-C1 issued by the Underlying Issuer under the
Underlying Indenture


 


“Class D-2 Bonds”
means $159,501,000 initial aggregate principal amount of Class D-2 Commercial
Mortgage Bonds, Series 1998-C1 issued by the Underlying Issuer under the
Underlying Indenture.


 


“Closing Date”
means June 30, 2004.


 


“Code” means the
Internal Revenue Code of 1986.


 


“Collection
Account” has the meaning specified in Section 8.02.


 


“Custodial
Account” has the meaning specified in Section 8.01.


 


“Debt Instruments”
has the meaning specified in Section 7.01


 


“Depositor” means
CRIIMI MAE Class D Depositor LLC, a Delaware limited liability company.


 


“Designated
Office” means the principal corporate trust office of the Trustee at 135 S.
LaSalle Street, Suite 1625, Chicago, Illinois, 60603 or such other office of
which notice is provided to the Certificateholders in connection with the
change of such office or of the Trustee.


 


“Distribution
Date” means each Underlying Payment Date.


 


“Eligible Account”
means a segregated trust account maintained with the Trustee or an Eligible
Institution selected by the Trustee, in each case in which funds are either
uninvested or invested solely in Eligible Investments.


 


“Eligible Institution”
means a depository institution the long-term deposit rating or the long-term
unsecured debt obligations of which (or in the case of the principal bank in a
bank holding company system, the long-term unsecured debt obligations of such
bank holding company) have been rated at least A+/Aa3 by Standard & Poor’s
and Moody’s, respectively, or maintained with a depository institution the
commercial paper of which (or, in the case of a principal bank in a bank
holding company system, the commercial paper of such bank holding company) is
rated at least A-1/P-1 by Standard & Poor’s and Moody’s, respectively.


 


“Eligible
Investments” means one or more of the following:


 


(i)            obligations of, or
guaranteed as to both full and timely payment of principal and interest by, the
United States or any agency or instrumentality thereof when such obligations
are


 


A-1-2

















 


backed by the full faith
and credit of the United States and repurchase agreements with respect to any such
obligations entered into with an Eligible Institution;


 


(ii)           federal funds,
certificates of deposit, time deposits and bankers’ acceptances, each of which
shall not have an original maturity of more than 90 days, of any depository
institution or trust company incorporated under the laws of the United States
or any state; provided, however, that the short-term obligations of such
depository institution or trust company shall be rated at least A-1/P-1 by
Standard & Poor’s and Moody’s, respectively;


 


(iii)          commercial paper (having
original maturities of not more than 180 days) of any corporation incorporated
under the laws of the United States or any state thereof; provided, however,
that such commercial paper shall be rated at least A-1+/P-1 by Standard & Poor’s
and Moody’s, respectively; and


 


(iv)          money market funds or
money market mutual funds (excluding any closed-end funds but, for the
avoidance of doubt, including any funds (other than closed-end funds) for which
the Trustee or its Affiliates may act as manager or advisor, whether or not for
a fee); provided, however, that any such fund:


 


(A)          shall be rated AAA/Aaa
by Standard & Poor’s and Moody’s, respectively;


 


(B)           shall have a stated
objective of maintaining a constant net asset value; and


 


(C)           either (x) shall not be
an obligation of an investment company registered under Section 8 of the
Investment Company Act or (y) shall be an obligation of (1) an entity which has
at least 95% of its assets continuously invested in exempted securities (within
the meaning of Section 3 of the Securities Act) or (2) a company which issues
face-amount certificates as defined in Section 2(a)(15) of the Investment
Company Act but excluding any such security which would cause the Trust to
violate Section 12(d)(1) of the Investment Company Act;


 


provided, however, that
(X) no instrument shall be an Eligible Investment if such instrument evidences
a right to receive only interest payments with respect to the obligations
underlying such instrument or if such instrument has a maturity date after the
next scheduled Distribution Date and (Y) no overnight instrument shall be an
Eligible Investment unless it is an investment in overnight federal funds or in
an overnight time deposit described in clause (ii) of this definition.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974.


 


“ERISA Plan” means
an “employee benefit plan” as defined in Section 3(3) of ERISA that is subject
to Title 1 of ERISA.


 


“Exchange Act”
means the Securities Exchange Act of 1934.


 


“Existing Class A
Certificateholders” has the meaning specified in Section 4.14.


 


“Face Amount”
means the amount specified on each Certificate as the Face Amount thereof,
which amount shall be at least $250,000 or an integral multiple of $1 in excess
thereof.  The Face Amount of a
Certificate is not necessarily the Principal Balance thereof at any particular
time.


 


A-1-3

















 


“Grantor Trust”
means a grantor trust as defined under the Grantor Trust Provisions.


 


“Grantor Trust
Provisions” means provisions of the Code relating to grantor trusts, which
appear in subpart E, part 1 of Subchapter J, Treasury Regulation Section
301.7701-4(c)(2), and related provisions, and proposed, temporary and final
Treasury regulations and any published rulings, notice and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.


 


“Investment
Company Act” means the Investment Company Act of 1940.


 


“Institutional
Accredited Investor” means an “accredited investor” as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or any
entity in which all of the equity owners come within such paragraphs.


 


“Moody’s” means
Moody’s Investors Service, Inc.


 


“Opinion of
Counsel” means a written opinion of internationally recognized counsel.


 


“Optional
Repurchase Date” has the meaning specified in Section 4.14.


 


“Optional
Repurchase Price” means, with respect to any Optional Repurchase Date, a price
(calculated after taking into account payments of principal and interest made
or to be made on the Class A Certificates out of Available Funds on such
Optional Repurchase Date) equal to the Discounted Value of the Class A
Certificates, plus accrued and unpaid interest thereon at the applicable Certificate
Rate to but not including the Optional Repurchase Date.  For purposes of this definition, the
following terms shall have the following meanings:


 


“Discounted Value” means,
with respect to Optional Repurchase Date, the amount obtained by discounting
all Remaining Scheduled Payments with respect to the Class A Certificates from
their respective scheduled payment dates (determined based on the assumptions
set forth in the definition of “Remaining Scheduled Payments”) to the Optional
Repurchase Date, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which interest
on the Underlying Assets is payable) equal to the Discount Rate.


 


“Discount Rate” means,
with respect to any Optional Repurchase Date, the sum of 1.65% plus the
Swap Rate.  The “Swap Rate” for any
Optional Repurchase Date shall be the rate for U.S. Dollar swaps with a
maturity equal to the Remaining Average Life of the Class A Certificates as of
such Optional Repurchase Date, expressed as a percentage, which appears on the
Reuters Screen ISDAFIX1 Page as of 11:00 a.m., New York city time, on the date
that is three Business Days preceding the Optional Repurchase Date.  Such rate will be determined, if necessary,
by interpolating linearly between (1) the rate for the maturity closest to and
greater than the Remaining Average Life and (2) the rate for the maturity
closest to and less than the Remaining Average Life.  If such rate cannot be determined by reference to the Reuters
Screen ISDA FIX1 Page, then the “Swap Rate” for such Optional Repurchase Date
will be a percentage determined on the basis of the mid-market semi-annual swap
rate quotations provided by the Reference Banks at approximately 11:00 a.m.,
New York City time, on the day that is three Business Days preceding such
Optional Repurchase Date, and, for this purpose, the semi-annual swap rate
means the mean of the bid and offered rates for the semi-annual fixed leg,
calculated on a 30/360 day count basis, of a fixed-for-floating U.S. Dollar
interest rate swap transaction with a term equal to the Remaining Average Life
of the Class A Certificates


 


A-1-4

















 


commencing on the Optional Repurchase Date with an
acknowledged dealer of good credit in the swap market, where the floating leg,
calculated on an Actual/360 day count basis, is equivalent to
“USD-LIBOR-BBA”  with a maturity equal
to the Remaining Average Life of the Class A Certificates. The Depositor will
request the principal New York City office of each of the Reference Banks to
provide a quotation of its rate. If at least three quotations are provided, the
Swap Rate will be the arithmetic mean of the quotations, eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest).


 


“Reference Banks” means
five leading swap dealers in the New York City interbank market.


 


“Remaining Average
Life”  means, with respect to the Class
A Certificates at any time, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) the Principal Balance of the Class A
Certificates into (ii) the sum of the products obtained by multiplying (a) the
principal component of each Remaining Scheduled Payment with respect to the
Class A Certificates by (b) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Optional Repurchase Date and the
scheduled payment date of such Remaining Scheduled Payment (determined based on
the assumptions set forth in the definition of such term).


 


“Remaining Scheduled
Payments” means, with respect to the Class A Certificates at any time, all
payments of principal on the Class A Certificates and interest thereon that would
be paid to the Certificateholders of the Class A Certificates after the
Optional Repurchase Date assuming that each Mortgage Loan (or Mortgage Loan
underlying any Mortgage Participation) pays any remaining principal on its
scheduled due date (or in the case of a Hyper-Amortization Loan, on its
Anticipated Repayment Date); provided that if such Optional Repurchase Date is
not a Distribution Date, then the amount of the next succeeding scheduled
interest payment on the Class A Certificates will be deemed to be reduced by
the amount of interest accrued to such Optional Repurchase Date.  As used herein, the terms “Mortgage Loan”,
“Mortgage Participation”, “Hyper-Amortization Loan” and “Anticipated Repayment
Date” have the meanings specified in the Underlying Indenture.  All references herein to a “scheduled due
date” shall be determined after giving effect to any modifications of the
payment terms of the relevant Mortgage Loan.


 


“Reuters Screen” means,
when used in connection with any designated page, the display page so
designated on the Reuters Money 3000 Service (or such other page as may replace
that page on that service for the purpose of displaying comparable rates or
prices).


 


“Permitted
Institutional Investor” means a Person that is an Institutional Accredited
Investor or a Qualified Institutional Buyer.


 


“Person” means any
individual, corporation, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organization, government or any agency or political subdivision thereof.


 


“Plan” means a
“Plan” as defined in the Underlying Indenture.


 


A-1-5

















 


“Principal
Balance” means, with respect to any Certificate at any time, the Principal
Balance thereof on the Closing Date as provided in Section 4.02 minus
reductions of such Principal Balance as a result of distributions pursuant to
Section 5.01; provided, however, that the Principal Balance of any Certificate
(the “successor Certificate”) issued upon registration of transfer of a
predecessor Certificate or in substitution for a predecessor Certificate shall
equal the Principal Balance of the predecessor Certificate multiplied by the
Face Amount of the successor Certificate and divided by the Face Amount of the
predecessor Certificate.


 


“Proper Transfer
Amount” means $250,000 Face Amount of Certificates or any integral multiple of
$1 in excess thereof.


 


“Qualified
Institutional Buyer” means a “qualified institutional buyer” as defined in Rule
144A under the Securities Act.


 


“Record Date”
means, with respect to any Distribution Date, the first day of the month in
which the Distribution Date falls.


 


“Register” means a
register for the registration of Certificates and of transfers and exchanges of
Certificates as provided in Section 4.07.


 


“Registrar” means
the Person appointed pursuant to Section 4.07 for the purpose of registering
Certificates and transfers and exchanges of Certificates as provided herein.


 


“Responsible
Officer” means, with respect to the Trustee, any officer assigned to the
Designated Office of the Trustee, or assigned to any other office referred to
in, or pursuant to, Section 11.05 with respect to the Trustee, including any
managing director, principal, vice president, assistant vice president,
assistant treasurer, assistant secretary, trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of this Agreement and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.


 


“Reinvestment
Income” means any reinvestment income earned on the investment of any funds
held in the Collection Account pending distribution to Certificateholders; and
Reinvestment Income with respect to any Distribution Date means the aggregate
amount of Reinvestment Income so earned and not theretofore distributed to
Certificateholders.


 


“Securities Act”
means the Securities Act of 1933.


 


“Standard &
Poor’s” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.


 


“Trust” means
CRIIMI MAE Class D Trust, a New York common law trust established pursuant to
this Agreement.


 


“Trustee” means
LaSalle Bank National Association, a national bank association.


 


“Underlying
Assets” means the Class D-1 Bonds, the Class D-2 Bonds and, where the context
so requires, all proceeds thereof.


 


A-1-6

















 


“Underlying Assets
Transfer” means the transfer to the Trust, and the deposit into the Trust, of
all right, title and interest of the Depositor in and to the Underlying Assets
pursuant to Section 3.01(a).


 


“Underlying
Collateral” means the “Collateral” as defined in the Underlying Indenture.


 


“Underlying
Default” means a “Default” or an “Event of Default” as defined in the
Underlying Indenture.


 


“Underlying Event
of Default” means an “Event of Default” as defined in the Underlying Indenture.


 


“Underlying Final
Payment Date” means the “Final Payment Date” for the Underlying Assets as
defined in the Underlying Indenture.


 


“Underlying
Indenture” means the Terms Indenture dated as of May 8, 1998, between the
Underlying Owner Trustee, on behalf of the Underlying Issuer, and the
Underlying Indenture Trustee, as amended from time to time.


 


“Underlying
Indenture Trustee” means LaSalle Bank National Association, a nationally
chartered bank, as indenture trustee with respect to the Underlying Assets, and
any successor thereto.


 


“Underlying
Issuer” means CRIIMI MAE Commercial Mortgage Trust, a Delaware statutory trust.


 


“Underlying Owner
Trustee” means Wilmington Trust Company, a Delaware Corporation.


 


“Underlying
Make-Whole Payment” means any payment of a “Make-Whole Amount” (as defined in
the Underlying Indenture) received by the Trustee as holder of the Underlying
Assets.


 


“Underlying
Payment Date” means a “Payment Date” for the Underlying Assets as defined in
the Underlying Indenture.


 


“Underlying
Payments” means payments (whether of principal or interest or otherwise, but
excluding any Underlying Make-Whole Payment), or proceeds of sale pursuant to
Section 2.04(c), received by the Trustee as holder of the Underlying Assets;
and Underlying Payments with respect to any Distribution Date means the
aggregate amount of Underlying Payments so received and not theretofore
distributed to Certificateholders.


 


A-1-7

















 


EXHIBIT A TO TRUST
AGREEMENT

(FORM OF CERTIFICATE)


 


CRIIMI MAE CLASS D TRUST


 


CERTIFICATE


 


THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER
ANY OTHER SECURITIES LAW.  NONE OF THE
PARTIES TO THE TRUST AGREEMENT REFERRED TO BELOW IS OBLIGATED TO REGISTER OR
QUALIFY, AS APPLICABLE, ANY CERTIFICATES UNDER THE SECURITIES ACT OF 1933 OR
ANY OTHER SECURITIES LAW OR TO TAKE ANY ACTION NOT OTHERWISE REQUIRED UNDER
THIS AGREEMENT TO PERMIT ANY TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF
THIS CERTIFICATE OR INTEREST THEREIN WITHOUT REGISTRATION OR QUALIFICATION.


 


AS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW, THIS CERTIFICATE IS SUBJECT TO SUBSTANTIAL RESTRICTIONS ON
TRANSFER.  ANY TRANSFER, SALE, PLEDGE OR
OTHER DISPOSITION OF THIS CERTIFICATE OR INTEREST THEREIN MAY BE MADE ONLY IN
COMPLIANCE WITH SUCH TRUST AGREEMENT, INCLUDING SECTION 4.08 THEREOF.


 


CERTIFICATE INFORMATION:


 


Class: [A][B]


Face Amount: 
$[                ]


Certificate Number [A][B]-[    ]


Name of Certificateholder:
[                        
]


 


 


Reference is made
to the Trust Agreement dated as of  June
30, 2004 (the “Agreement”) between CRIIMI MAE Class D Depositor LLC (the
“Depositor”) and LaSalle Bank National Association, Trustee, relating to CRIIMI
MAE Class D Trust, a New York common law trust.  Terms used but not defined in this Certificate are used as
defined in the Agreement.


 


This certifies
that the Certificateholder specified above under “Certificate Information” is
the registered owner of a Certificate issued under the Agreement and having the
Class designation, Face Amount and Certificate number specified above under
“Certificate Information”.


 


The Principal
Balance of this Certificate is not the Face Amount of this Certificate.  Current information relating to the
Principal Balance of this Certificate should be obtained by the
Certificateholder hereof and any prospective transferee.


 


[THE CLASS A CERTIFICATES ARE SUBJECT
TO OPTIONAL REPURCHASE BY THE DEPOSITOR ON ANY BUSINESS DAY ON AND AFTER THE
[JUNE 2009] DISTRIBUTION DATE IN ACCORDANCE WITH THE TERMS OF THE
AGREEMENT.   UPON THE CONSUMMATION OF
ANY SUCH REPURCHASE, AND REGARDLESS OF WHETHER THE CLASS A CERTIFICATES HELD BY
THE PRIOR HOLDERS THEREOF (THE “REPURCHASED CERTIFICATES”) SHALL HAVE BEEN
SURRENDERED TO THE TRUSTEE, SUCH REPURCHASED CERTIFICATES SHALL BE DEEMED TO
HAVE BEEN


 


A-1

















 


CANCELED
IN EXCHANGE FOR NEW CLASS A CERTIFICATES ISSUED TO THE DEPOSITOR PURSUANT TO
THE AGREEMENT, AND NO HOLDER OF SUCH REPURCHASED CERTIFICATES SHALL HAVE ANY
FURTHER RIGHT TO RECEIVE ANY DISTRIBUTIONS UNDER THE AGREEMENT OTHER THAN (X)
DISTRIBUTIONS THAT WOULD OTHERWISE BE MADE TO SUCH HOLDER ON THE DATE OF SUCH
REPURCHASE PURSUANT TO SECTION 5.01 OF THE AGREEMENT AND (Y) THE RIGHT TO
RECEIVE PAYMENT OF ITS PRO RATA SHARE OF THE OPTIONAL REPURCHASE
PRICE UPON SURRENDER OF SUCH CANCELED REPURCHASED CERTIFICATE AS SET FORTH IN
THE AGREEMENT.  ACCORDINGLY, PRIOR TO
ACCEPTING ANY TRANSFER OF A CLASS A CERTIFICATE OR ANY INTEREST THEREIN, THE
TRANSFEREE SHOULD CONFIRM WITH THE TRUSTEE THAT THE CLASS A CERTIFICATES HAVE
NOT ALREADY BEEN REPURCHASED BY THE DEPOSITOR PURSUANT TO THE AGREEMENT.]*


 


This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement. By accepting this Certificate, the Certificateholder hereof has and
shall be deemed to have acknowledged and agreed that such Certificateholder is
familiar with all the terms of the Agreement and is bound by all the terms of
the Agreement applicable to such Certificateholder.


 


If there is any
conflict between any provision of this Certificate and any provision of the
Agreement, the Agreement shall control to the extent of such inconsistency.


 


The Agreement sets
forth all the economic and other rights of the Certificates, including the
relative rights of the Class A Certificates and the Class B Certificates and
certain indemnities, reimbursement obligations and other obligations of the Certificateholder
hereof, along with certain exculpatory provisions relating to the parties to
the Agreement.  Without limiting the
generality of the foregoing, any distribution made with respect to this
Certificate shall be made in accordance with the Agreement in the amount, on
the Distribution Date and with respect to the Certificateholder of record on
the Record Date in each case determined pursuant to the Agreement, and any such
distribution shall be made only from the assets of the Trust available therefor
in accordance with the priorities of distribution set forth in the Agreement.


 


THIS CERTIFICATE
AND ALL RIGHTS HEREUNDER AND PROVISIONS HEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.


 


IN WITNESS
WHEREOF, the Trustee has executed and delivered this Certificate


 












*  This
paragraph is to be included only in the Class A Certificates.


 


A-2

















 


	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  not in its individual capacity but solely

  as Trustee on behalf of the Trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
  CERTIFICATE OF AUTHENTICATION:

  
	
   

  
	
  This is one of the Class [A] [B] Certificates
  referred to in the within-mentioned Agreement.

  
	
   

  
	
  Dated:

  	
   

  	
   

  
	
   

  
	
  LASALLE BANK NATIONAL ASSOCIATION,

  
	
  Trustee

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
								



 


A-3

















 


EXHIBIT
B TO TRUST AGREEMENT

(FORM OF CERTIFICATE OF TRANSFERRING CERTIFICATEHOLDER)


 


CRIIMI MAE CLASS D TRUST


 


CERTIFICATE OF TRANSFERRING CERTIFICATEHOLDER


 


To the Registrar under
the Trust Agreement referred to below:


 


Reference is made
to the Trust Agreement dated as of  June
30, 2004 (the “Agreement”) between CRIIMI MAE Class D Depositor LLC and LaSalle
Bank National Association, Trustee, relating to CRIIMI MAE Class D Trust, a New
York common law trust.  Terms used but
not defined in this Transferring Certificateholder’s Certificate are used as
defined in the Agreement.


 


This Certificate
of Transferring Certificateholder relates to
$[                     ]
Face Amount of Class [A][B] Certificates (the “Specified Certificates”, which
may be one Certificate or more than one Certificate) registered in the name of
the undersigned (the “Transferring Certificateholder”).  The Transferring Certificateholder proposes
to effect a Certificate Transfer with respect to the Specified Certificates to
[                 ]
(the “Transferee”).


 


The Transferring
Certificateholder hereby certifies, represents and warrants to the Registrar as
follows:


 


1.             The Transferring
Certificateholder is the lawful owner of the Specified Certificates with the
full right to transfer the Specified Certificates free from any and all claims
and encumbrances.


 


2.             Neither the
Transferring Certificateholder nor anyone acting on its behalf has taken any of
the following actions or any other action so as to cause such action to
constitute a distribution of the Specified Certificates under the Securities
Act, to cause such Certificate Transfer to be a violation of Section 5 of the
Securities Act or any state securities laws or to require registration or
qualification of the Specified Certificates or such Certificate Transfer
pursuant to the Securities Act or any state securities laws:


 


(a)           offered, transferred,
pledged, sold or otherwise disposed of any Specified Certificate, any interest
in a Specified Certificate or any other similar security to any Person;


 


(b)           solicited any offer to
buy or accept a transfer, pledge or other disposition of any Specified
Certificate, any interest in a Specified Certificate or any other similar
security from any Person;


 


(c)           otherwise approached or
negotiated with respect to any Specified Certificate, any interest in a
Specified Certificate or any other similar security with any Person;


 


(d)           made any general
solicitation with respect to any Specified Certificate, any interest in a
Specified Certificate or any other similar security by means of general
advertising or in any other manner; or


 


B-1

















 


(e)           taken any other action
with respect to any Specified Certificate, any interest in a Specified
Certificate or any other similar security.


 


IN WITNESS
WHEREOF, this Transferring Certificateholder’s Certificate has been executed
and delivered of the date set forth below.


 


Dated:
[                   ]


 


 


	
   

  	
  [Name of Transferring Certificateholder]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


B-2

















 


EXHIBIT
C TO TRUST AGREEMENT

(FORM OF TRANSFEREE’S CERTIFICATE)


 


CRIIMI MAE CLASS D TRUST


 


TRANSFEREE’S CERTIFICATE


 


To the Registrar under
the Trust Agreement referred to below:


 


Reference is made
to the Trust Agreement dated as of  June
30, 2004 (the “Agreement”) between CRIIMI MAE Class D Depositor LLC and LaSalle
Bank National Association, Trustee, relating to CRIIMI MAE Class D Trust, a New
York common law trust.  Terms used but
not defined in this Transferee’s Certificate are used as defined in the Agreement.


 


This Transferee’s
Certificate relates to
$[               ]
Face Amount of Class [A][B] Certificates (the “Specified Certificates”, which
may be one Certificate or more than one Certificate) registered in the name of
[           ](the
“Transferring Certificateholder”).  The
Transferring Certificateholder proposes to effect a Certificate Transfer with
respect to the Specified Certificates to the undersigned (the “Transferee”).


 


The Transferee
hereby certifies, represents and warrants to the Registrar and the Depositor as
follows:


 


1.             Either (A) the
Transferee is a Qualified Institutional Buyer or (B) the Transferee is a
Permitted Institutional Investor and the Certificate Transfer is otherwise
exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of any applicable state
securities laws (and the Transferee understands that the Trust and the
Depositor have no obligation or intention to effect any registration or
qualification of the Specified Certificates under any securities laws).


 


2.             The transferee is not
a Plan or a Person who is directly or indirectly acquiring a Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless the prospective transferee of such Certificate or
interest therein has provided the Registrar and the Depositor with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Underlying Indenture Trustee and the Depositor that such
Certificate Transfer and holding of such Certificate or interest therein will
not constitute or result in a non-exempt prohibited transaction under ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code and will not subject the Trust, the Depositor, the
Underlying Issuer, the Underlying Owner Trustee, the Manager (as defined in the
Underlying Indenture), the Company (as defined in the Underlying Indenture),
the Bond Registrar (as defined in the Underlying Indenture) or the Underlying Indenture
Trustee to any obligation in addition to those undertaken in the Underlying
Indenture or this Agreement, as applicable.


 


C-1

















 


3.             The attached
Transferee’s Questionnaire has been completed so as to be true, accurate and
complete.


 


4.             The Transferee has
carefully read and understands the final private offering memorandum dated May
6, 1998 relating to the CRIIMI MAE Commercial Mortgage Trust Commercial
Mortgage Bonds, Series 1998-C1. including without limitation the “Risk Factors”
section in such offering memorandum, and has based its decision to hold the
Certificates upon the information contained therein and not upon any other
information, if any, provided to it with respect to the Underlying Assets.  The Transferee has also been furnished with
all information regarding (a) the Certificates and payments thereon, (b) the
nature and performance of the Certificates and (c) the Trust Agreement, that it
has requested.


 


5.             The Transferee is
aware that the sale to it of the Specified Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring the Specified Certificates
for its own account or for the account of a Qualified Institutional Buyer, and
understands that such Specified Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) as evidenced by an
Opinion of Counsel, to another Permitted Institutional Investor pursuant to
another exemption from registration under the Securities Act.


 


IN WITNESS
WHEREOF, this Transferring Certificateholder’s Certificate has been executed
and delivered of the date set forth below.


 


Dated:
[                     ]


 


 


	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-2

















 


CRIIMI MAE CLASS D TRUST


 


TRANSFEREE’S QUESTIONNAIRE

ACCOMPANYING TRANSFEREE’S CERTIFICATE


 


Note:  This Transferee’s Questionnaire must be
completed and attached to the related Transferee’s Certificate.


 


A.            Status as “Permitted Institutional
Investor”


 


Please check the applicable
statement:


 


The Transferee is:


 


(1)                       
a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act; or


 


(2)                       
an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or any entity in which all of the
equity owners come within such paragraphs.


 


B.            Status as
“Qualified Institutional Buyer”


 


If the Transferee
has indicated that it is a qualified institutional buyer above, the Transferee
certifies that (i) the Transferee owned and/or invested on a discretionary
basis $
                      
(1)in securities (other than the excluded securities referred to below) as of
the end of the Transferee’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A under the Securities Act) and (ii) the
Transferee satisfies the criteria in the category marked below.


 


o            Corporation,
etc.  The Transferee is a
corporation (other than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue Code of
1986.


 


o            Bank.  The Transferee (a) is a national bank or a
banking institution organized under the laws of any State, U.S. territory or
the District of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the Bond in the case of a
U.S. bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.


 


o            Savings
and Loan.  The Transferee (a) is a
savings and loan association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and examined
by a State or Federal authority having supervision over any


 












(1)           Transferee
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Transferee is a dealer, and, in that case, Transferee must
own and/or invest on a discretionary basis at least $10,000,000 in securities.


 


CQ-1

















 


such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Bond in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent institution.


 


o            Broker-dealer.  The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934, as amended.


 


o            Insurance
Company.  The Transferee is an
insurance company whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner or
a similar official or agency of a State, U.S. territory or the District of
Columbia.


 


o            State
or Local Plan.  The Transferee is a
plan established and maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political subdivisions, for the
benefit of its employees.


 


o            ERISA
Plan.  The Transferee is an employee
benefit plan within the meaning of Title I of the Employee Retirement Income
Security Act of 1974.


 


o            Investment
Advisor.  The Transferee is an
investment advisor registered under the Investment Advisers Act of 1940, as
amended.


 


o            Other.  (Please supply a brief description of the
entity and a cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A of the Securities Act pursuant to which it qualifies)


 


 


3.             The term “securities”
as used herein does not include (i) securities of issuers that are
affiliated with the Transferee, (ii) securities that are part of an unsold
allotment to or subscription by the Transferee, if the Transferee is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps. For purposes
of determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of
the securities referred to in this paragraph.


 


4.             For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee used the cost of such
securities to the Transferee, unless the Transferee reports its securities
holdings in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities were valued at market. Further, in
determining such aggregate amount, the Transferee may have included securities
owned by subsidiaries of the Transferee, but only if such subsidiaries are
consolidated with the Transferee in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under the Transferee’s direction. However,
such securities were not included if the Transferee is a majority-owned,


 


CQ-2

















 


consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.


 


5.             The Transferee
acknowledges that it is familiar with Rule 144A of the Securities Act and
understands that the Transferring Certificateholder and other parties related
to the Specified Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be in
reliance on Rule 144A.


 


	
  o

  	
   

  	
  o

  	
   

  	
  Will the Transferee be purchasing the Specified
  Certificates

  
	
  Yes

  	
   

  	
  No

  	
   

  	
  only for the Transferee’s own account?

  



 


6.             If the answer to the
foregoing question is “no”, then in each case where the Transferee is
purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of
Rule 144A, and the “qualified institutional buyer” status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.


 


C.            Other Certifications
for all Transferees


 


1.             a.             Is the Transferee an insurance company
acquiring its Certificates with the assets of its general account?


 


	
   

  	
  o

  	
  Yes

  
	
   

  	
  o

  	
  No

  



 


b.             If the Transferee
answers “Yes”
to (a) above, does the percentage of the reserves and liabilities of
such general account that are held on behalf of any ERISA Plan (i.e., an
“employee benefit plan” as defined in Section 3(3) of ERISA that is subject to
Title 1 of ERISA) or another Plan (i.e., a “plan” as defined in and subject to
Section 4975 of the Code) or an entity the underlying assets of which include
the assets of any such ERISA Plan or other Plan exceed 10% of the total
reserves and liabilities of such general account as determined in accordance
with Department of Labor Prohibited Class Exemption 95-60?


 


	
   

  	
  o

  	
  Yes

  
	
   

  	
  o

  	
  No

  



 


NOTE:            If the Transferee answers “Yes” to
(3)(b) above, the Certificate Transfer may not occur.  From time to time after the Certificate Transfer, the Transferee
shall provide to the Registrar an accurately updated answer to 3(b) above.


 


If the Transferee
is acting for the account of another Person, set forth below is a list of each
such other Person, and attached hereto is a completed Transferee’s
Questionnaire for each such other Person.


 


CQ-3

















 


D.            General Information


 


Wire Instructions
for Payments:


 


Bank:


Address:


Bank ABA #:


Account No.:


FAO:


Attention:


 


 


Address for
Notices:


 


Tel:


Fax:


Attn.:


 


Registered Name
(if Nominee):


 


CQ-4

















 


EXHIBIT
D TO TRUST AGREEMENT


(FORM OF INITIAL
CERTIFICATE


HOLDER’S REPRESENTATION
LETTER)


 


CRIIMI MAE CLASS D TRUST


 


INITIAL
CERTIFICATEHOLDER’S REPRESENTATION LETTER


 


[Date]


 


Re:          Class A
and B Certificates of CRIIMI MAE Class D Trust


 


Ladies and Gentlemen:


 


In connection with
the proposed transfer to us of U.S.
$[       ] face amount of Class A
Certificates and U.S. $[     ] face amount of Class B
Certificates of CRIIMI MAE Class D Trust (the “Issuer”), pursuant to Section
4.02 of the Trust Agreement (the “Trust Agreement”) dated as of June 30, 2004
between CRIIMI MAE Class D Depositor LLC (the “Depositor”), and LaSalle Bank
National Association, Trustee (the “Trustee”), we (the “Initial
Certificateholder”) acknowledge, represent, agree and confirm, as of the date
hereof, for your benefit and the benefit of the Issuer and its counsel, that:


 


1.             Either (a) the
Initial Certificateholder is a Qualified Institutional Investor or (b)  a Permitted Institutional Investor and the
transfer of the Certificates to the Initial Certificateholder is otherwise
exempt from the registration requirements of the Securities Act and the
registration and/or qualification requirements of any applicable state
securities laws (and the Initial Certificateholder understands that neither the
Trust nor the Depositor have any obligation or intention to effect any
registration or qualification of the Certificates under any securities laws).


 


2.             Either (a) the
Initial Certificateholder is not an ERISA Plan (i.e., an “employee benefit
plan” as defined in Section 3(3) of ERISA that is subject to Title 1 of ERISA)
or another Plan (i.e., a “plan” as defined in and subject to Section 4975 of
the Code), a governmental plan that is subject to any federal, state or local
law which is substantially similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code or an entity the underlying assets of which include
the assets of any such ERISA Plan, other Plan or governmental plan or (b) the
Initial Certificateholder’s acquisition, holding and disposition of the Certificate
will not result in a prohibited transaction or excise tax, as applicable, under
Section 406 of ERISA or Section 4975 of the Code (or, in the case of a
governmental plan, any substantially similar federal, state or local law) for
which an exemption is not available.


 


3.             The attached Initial
Certificateholder Questionnaire has been completed so as to be true, accurate
and complete.


 


4.             The Initial
Certificateholder has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment
in the Certificates, and the Initial Certificateholder and any accounts for
which it is acting are each able to bear the economic risk of investing in the
Certificates and can afford the complete loss of such investment.


 


D-1

















 


5.             The Initial
Certificateholder has carefully read and understands the final private offering
memorandum dated May 6, 1998 relating to the CRIIMI MAE Commercial Mortgage
Trust Commercial Mortgage Bonds, Series 1998-C1. including without limitation
the “Risk Factors” section in such offering memorandum, and has based its
decision to hold the Certificates upon the information contained therein and
not upon any other information, if any, provided to it with respect to the
Underlying Assets.  The Initial
Certificateholder has also been furnished with all information regarding (a)
the Certificates and payments thereon, (b) the nature and performance of the
Certificates and (c) the Trust Agreement, that it has requested.


 


6.             The Initial
Certificateholder will not, at any time, offer to buy or offer to sell the
Certificates by any form of general solicitation or advertising, including, but
nor limited to, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar medium or broadcast over
television or radio or seminar or meeting whose attendees have been invited by
general solicitations or advertising.


 


7.             The Initial
Certificateholder understands that prior to any proposed transfer of
Certificates, it may be required to furnish to the Issuer such certifications,
legal opinions or other information as it may reasonably require to confirm
that the proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
and applicable state securities laws.


 


8.             The Initial
Certificateholder shall preserve copies of this letter and all related letters,
certificates, legal opinions, notices and other documents, and upon request
shall furnish you with copies thereof. 
You are entitled to rely on such documents, and we irrevocably authorize
you to produce such documents in connection with any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.


 


9.             Capitalized terms
used and not defined herein shall have the meanings assigned to them in the
Trust Agreement.


 


	
   

  	
  [Name of Initial
  Certificateholder]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-2

















 


CRIIMI MAE CLASS D TRUST


 


INITIAL
CERTIFICATEHOLDER’S QUESTIONNAIRE

ACCOMPANYING THE INITIAL CERTIFICATEHOLDER’S 

REPRESENTATION LETTER


 


Note:  This Initial Certificateholder’s
Questionnaire must be completed and attached to the related Initial
Certificateholder’s Representation Letter.


 


A.            Status as “Permitted Institutional
Investor”


 


Please check the
applicable statement:


 


The Initial
Certificateholder is:


 


(1)                       
a “qualified institutional buyer” as defined in Rule 144A under the Securities
Act.;


 


(2)                       
an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or any entity in which all of the
equity owners come within such paragraphs.


 


B.            Other Certifications
for all Initial Certificateholders


 


1.             a.             Is the Initial Certificateholder an
insurance company acquiring its Certificates with the assets of its general
account?


 


	
   

  	
  o

  	
  Yes

  
	
   

  	
  o

  	
  No

  



 


b.             If the Initial
Certificateholder answers “Yes” to (a) above, does the percentage of
the reserves and liabilities of such general account that are held on behalf of
any ERISA Plan (i.e., an “employee benefit plan” as defined in Section 3(3) of
ERISA that is subject to Title 1 of ERISA) or another Plan (i.e., a “plan” as
defined in and subject to Section 4975 of the Code) or an entity the underlying
assets of which include the assets of any such ERISA Plan or other Plan exceed
10% of the total reserves and liabilities of such general account as determined
in accordance with Department of Labor Prohibited Class Exemption 95-60?


 


	
   

  	
  o

  	
  Yes

  
	
   

  	
  o

  	
  No

  



 


NOTE:            If the Initial Certificateholder answers “Yes” to
(3)(b) above, the Certificate Transfer may not occur.  From time to time after the Certificate Transfer, the Initial
Certificateholder shall provide to the Registrar an accurately updated answer
to 3(b) above.


 


DQ-1

















 


If the Initial
Certificateholder is acting for the account of another Person, set forth below
is a list of each such other Person, and attached hereto is a completed Initial
Certificateholder’s Questionnaire for each such other Person.


 


C.            General Information


 


Wire Instructions for Payments:


 


Bank:


Address:


Bank ABA #:


Account No.:


FAO:


Attention:


 


 


Address for Notices:


 


Tel:


Fax:


Attn.:


 


Registered Name (if Nominee):


 


DQ-2

















 


EXHIBIT
E TO TRUST AGREEMENT


(CERTIFICATION OF CRIIMI
MAE INC.)


 


CRIIMI MAE CLASS D TRUST


 


CERTIFICATION


 


[Date]


 


Ladies and Gentlemen:


 


In connection with the
proposed transfer by us of U.S. $[   ] face amount of Class B
Certificates of CRIIMI MAE Class D Trust to
[                  ]
(the “Proposed Transfer”), pursuant to Section 4.02 of the Trust Agreement
dated as of June 30, 2004 between CRIIMI MAE Class D Depositor LLC, and LaSalle
Bank National Association, Trustee, we represent and confirm, as of the date
hereof, that the Proposed Transfer by us is being made in connection with (x) a
pledge by us or any of our subsidiaries to secure indebtedness of CRIIMI MAE
Inc. or one or more of our subsidiaries or any repurchase transaction treated
as indebtedness of CRIIMI MAE Inc. or any such subsidiary for federal income
tax purposes or (y) a sale of the Class B Certificates by the related lender
under the related pledge or repurchase transaction described in clause (x) upon
a default under any such indebtedness.


 


9.             Capitalized terms
used and not defined herein shall have the meanings assigned to them in the
Trust Agreement.


 


 


	
   

  	
  CRIIMI MAE INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-1